Mitchell v. Ireland

• Decision Date: 11 January 1881
• Docket Number: Case No. 1325.
• Citation: 54 Tex. 301
• Parties: ELIZABETH MITCHELL v. JOHN IRELAND ET AL.
• Court: Texas Supreme Court

54 Tex. 301

ELIZABETH MITCHELL

v.JOHN IRELAND ET AL.

Case No. 1325.

Supreme Court of Texas.

Jan. 11, 1881.

APPEAL from Gonzales. Tried below before the Hon. Everett Lewis.

Suit by Elizabeth Mitchell et al. against John Ireland and others, appellees.

In the original petition plaintiffs alleged that they were the only heirs at law of Eli Mitchell, who died in April, 1870, intestate, and as such were entitled to his estate; that Sarah DeWitt died on the 27th of November, 1854, and that by her will she devised to C. E. DeWitt one-sixth interest in her estate, which consisted in part of a tract of land situated in Guadalupe county, above the town of Seguin, and off of the Sarah DeWitt survey.

That C. E. DeWitt was appointed executor, who, under the will, sold the land in 1878, and received the purchase money therefor, and that afterwards, on the 10th of June, 1878, the executor and commissioners named in the will set apart as the share of C. E. DeWitt the sum of $839.20.

That on the 10th day of February, 1858, C. E. DeWitt conveyed to plaintiff's ancestor, Eli Mitchell, deceased, his entire interest in the tract of land; and that by virtue of that conveyance, plaintiffs are entitled to the $839.20; that the executor still withholds said amount, and refuses to pay over the same to petitioners; that the heirs of C. E. DeWitt and W. H. Burges and John Ireland are setting up claim to the money, all of whom are made parties defendant with the executor. They prayed for judgment against all of the defendants; that the title to the money be adjudged in them, and for an order compelling the executor to pay over the same.

The defendants Burges and Ireland answered at the spring term, 1879, admitting the purchase by Eli Mitchell of C. E. DeWitt's interest in the land; also the sale by the executor and the retention of the amount of money, as alleged by the plaintiffs. They denied, however, plaintiffs' right to the money. They alleged that on the 5th of October, 1858, one William Dunn purchased at sheriff's sale, under a valid and subsisting judgment and execution against Mitchell, all of his interest in the land, and that they are now the owners of Dunn's title. That both Dunn and they were purchasers in good faith, for value, and without notice of any adverse claim or irregularity in the judgment or execution under which the sale was made; that they held the land for a number of years, and paid the taxes, and never heard of plaintiffs' claim until just before the institution of this suit; and that by virtue of the sale to Dunn they were entitled to the amount held by the executor, for which they pray judgment.

On October 27, 1879, plaintiffs filed their first supplemental petition, in which they alleged that the judgment under which Dunn purchased was paid off and satisfied in full by Eli Mitchell on the 6th of September, 1858, paying the full amount thereof to the sheriff of Gonzales county on an execution by him held, and which execution the sheriff immediately returned into court indorsed satisfied in full. They further alleged that there was no valid levy of the execution under which Dunn purchased, and that the sale was void and passed no title; that Dunn was at the time of sale the deputy sheriff of Guadalupe county, and that he and the sheriff combined together to defraud Eli Mitchell; that the land only brought five dollars at the sale, when it was worth $500, and that the sale was void for inadequacy of price, and for fraud.

The executor, C. E. DeWitt, answered, admitting that he held the sum of $839.27 allotted to the share of C. E. DeWitt out of the proceeds of the land by him conveyed, and averred his willingness and readiness to pay over the same to the party adjudged to be entitled thereto.

On October 28, 1879, Burges and Ireland filed their first supplemental answer, in which they alleged that Eli Mitchell was a surety for C. E. DeWitt in the judgment under which they held, and as such had procured to be issued the execution under which the sale to Dunn had been made, and that it was by the direction of Mitchell that the levy and sale was made. They alleged, further, that if the judgment was satisfied at the time of the sale to Dunn, neither the sheriff nor Dunn had any notice of same. They pleaded the acts of Mitchell as an estoppel to the plaintiffs; that Mitchell acquiesced in the sale up to the time of his death, never having taken any steps to recover the land, and that by his silence they were induced to purchase. They pleaded the laches of plaintiffs, and of their ancestor, and also stale demand.

Plaintiffs filed a second supplemental petition, denying the allegations in defendants' answers.

They alleged that Eli Mitchell instructed the sheriff of Guadalupe county to levy the execution upon the interest of C. E. DeWitt in the...