Morris v. Hastings

• Decision Date: 14 February 1888
• Citation: 7 S.W. 649
• Parties: MORRIS v. HASTINGS <I>et al.</I>
• Court: Texas Supreme Court

Page 649

7 S.W. 649

MORRIS v. HASTINGS et al.

Supreme Court of Texas.

February 14, 1888.

Commissioners' decision. Appeal from district court, Starr county; J. C. RUSSELL, Judge.

McCampbell & Givens and Stanley Welch, for appellant. Wells & Hicks and Waul & Walker, for appellees.

MALTBIE, J.

This was an action of trespass to try title, brought by the appellant, Edward Morris, against C. B. Hastings and his wife, Gumecinda P., to recover a house and the lots upon which it was situated. On 17th of March, 1882, Morris recovered a judgment against C. B. Hastings, from which execution was issued, and the property in controversy levied upon and sold by the sheriff of Starr county, and purchased by Morris, the amount of his bid at the sale being credited on the execution. C. B. Hastings and wife were married in the year 1871, and lived together until her death in the year 1885. The lots in dispute were conveyed to her by John Vail on 31st of June, in the year 1879, and the house was built in the same year. After Mrs. Hastings' death her children were made parties defendant, and claimed that the house and lots were her separate property. On the trial the following charge was given at the request of defendants: "The jury are instructed that if they find, from the evidence, that the house and lots in question were not levied on by the sheriff as the property of the defendant C. B. Hastings, but were levied on as the property of Gumecinda P. Hastings, then a sale under and by virtue of such levy, as against the defendants, would not be a valid sale, and you will find for defendants." This is assigned as error. It does not appear that the property was sold as belonging to Mrs. Hastings, nor is it stated, in the levy, to whom it did belong. Appellant exhibited a valid judgment and execution against C. B. Hastings, and read in evidence a sheriff's deed reciting that the property was levied on and sold, by virtue of the judgment and execution, as the property of C. B. Hastings, and purchased by himself; while the only evidence introduced by appellees on this subject was a notice, which was identified by the officer who posted it, and made the sale, as being one of the notices under which the sale was made, and who also stated that the others were of similar import, — which notice recited that the lots were levied on, and would be sold as, the property of Mrs. Gumecinda Hastings, to satisfy appellant's execution against C. B. Hastings.

The description, in the levy, of the property was correct, and the only defect in it is that it does not state that it was levied on as the property of the defendant C. B. Hastings; and the notice also correctly describes the lots, but states that they were levied upon as the property of Mrs. Hastings. When notice of the sale has not been properly given, if objection be made by the defendant in execution without unnecessary delay, the sale may be set aside. But the notice of the sale, being for the benefit of the defendant, will be considered waived if not made in a reasonable time. Freem. Ex'ns, § 286. And in a collateral proceeding it is not essential to the validity of the sale that there should have been an advertisement of the property. Howard v. North, 5 Tex. 308, 309. Though if such irregularity is brought about by the fraud and collusion of the purchaser, and the property sells for a grossly inadequate price, the sale may be avoided as to such vendee, and those holding under him with notice. Stone v. Day, 5 S. W. Rep. 642, (Tyler term, 1887.) Our Revised Statutes do not provide that sales...