Morton v. Welborn
| Decision Date | 01 January 1858 |
| Parties | RUFUS MORTON AND OTHERS v. WELBORN AND OTHERS. |
| Court | Texas Supreme Court |
Land levied upon and sold at a sheriff's sale as the property of a defendant in execution, held by virtue of a location and survey under a certificate subsequently patented to the heirs of said defendant for the same land (is divested by such sale if valid).
Where a defendant in execution receives the benefit of the proceeds of a sheriff's sale, his heirs will not be heard to impeach it, without reimbursing the money so received. Ante, 287; 7 Tex. 290;26 Tex. 515.
Error from Red River. Tried below before Hon. W. S. Todd.
Suit instituted by plaintiffs in error against C. C. Welborn and E. Raney for ten 847-100, 165-100 labors of land patented to the heirs of John Morton, deceased, as assignee of E. Bruton. The defendant, C. C. Welborn, claimed 320 acres by deed from Charles Welborn, and the heirs of Charles Welborn (who were made defendants) claimed 320 acres by bond from Wm. M. Harrison for 640 acres, including said two tracts of 320 acres. And defendant, E. Raney, claimed 640 acres by bond from said Harrison to D. Raney. The defendants called in said Harrison to defend. Wm. M. Harrison claimed the land sued for by virtue of sheriff's deed, said deed founded upon a sale made in September, 1843, under an execution issued from the district court of Red River county in favor of Glasgow & Harrison against said John Morton.
The plaintiffs proved that they were the children of said John Morton, and read as evidence a patent for the land in controversy, issued to the heirs of John Morton. The defendant then read as evidence the judgment and execution of Glasgow & Harrison against Morton, and sheriff's deed to Harrison bearing date September, 1842, and Harrison's bond to Welborn & Raney for 640 each, and Charles Welborn's deed to defendant, C. C. Welborn, for 320 acres of the land that Harrison had conveyed to said Charles.
The execution under which the sale was made was indorsed “sale with appraisement; further, the levy was made upon 2,614 acres of land, and that 1,933 13-100 off of the north and east side was sold; and plaintiffs further proved that the execution was issued and levied upon the land in John Morton's life-time;” and that the sale under execution was made by the sheriff after the death of said John Morton.
S. H. Morgan, for plaintiff in error.
J. A. N. Murray, for defendants in error.
The ruling of the court, admitting the...
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De Guerra v. De Gonzalez
...W. 700; Vanderwolk v. Mattaei, 167 S. W. 304; Smithwick v. Kelly, 79 Tex. 564, 15 S. W. 490; Andrews v. Richardson, 21 Tex. 296; Morton v. Welborn, 21 Tex. 772; Walker v. Lawler, 45 Tex. In this case appellees simply brought an action in trespass to try title to recover title and possession......
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Mitchell v. Reitz
...argument on the motion by plaintiffs in error. French v. Grenet, 57 Tex. 273; Northcraft v. Oliver, 74 Tex. 162, 11 S. W. 1121; Morton v. Welborn, 21 Tex. 772; Howard v. North, 5 Tex. 290, 51 Am. Dec. 769; Walker v. Lawler, 45 Tex. 532; Halsey v. Jones, 86 Tex. 488, 25 S. W. 696; De Guerra ......
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Halsey v. Jones
...very clear statement of the rule, and announces the same principle which was applied in French v. Grenet, 57 Tex. 273. See, also, Mortin v. Welborn, 21 Tex. 772; Howard v. North, 5 Tex. 290; Bailey v. White, 13 Tex. 114; Johnson v. Caldwell, 38 Tex. 218; Walker v. Lawler, 45 Tex. 532; McDon......
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Northcraft v. Oliver
...against the land, notwithstanding both the judgment and the execution under which the sale was made were void. In the case of Morton v. Welborn, 21 Tex. 772, the heirs sued for the land of their ancestor, which defendants claimed through an execution sale made, after the ancestor's death, o......