Owen v. City of Navasota

• Decision Date: 01 January 1876
• Citation: 44 Tex. 517
• Parties: JOHN H. OWEN v. CITY OF NAVASOTA.
• Court: Texas Supreme Court

44 Tex. 517

JOHN H. OWEN

v.CITY OF NAVASOTA.

Supreme Court of Texas.

1876.

APPEAL from Grimes. Tried below before the Hon. J. R. Burnett.

The facts are fully stated in the opinion.

J. C. Hutcheson, for appellant, cited Coffee v. Silvan, 15 Tex., 362;Riddle v. Bush, 27 Tex., 675;Howard v. North, 5 Tex., 290;Sydnor v. Roberts, 13 Tex., 620;Ayres v. Duprey, 27 Tex., 593;Hancock v. Metz, 15 Tex., 210;Webb v. Mallard, 27 Tex., 82;Moore v. Lowery, 27 Tex., 541;Jackson v. Rosevelt, 13 Johns., 97; Jeans v. Wilkins, 1 Vesey, 105; Sumner v. Moore, 2 McLean, 59;Jackson v. Robins, 16 Johns., 537; Jackson v. Bartlett, 8 Johns., 391; 3 Wash. C. C. R., 546, 550; Swiggart v. Harber, 5 Ill., (4 Scam.,) 364; 1 Hill, (S. C.,) Eq. R., 129-415; Outcolt v. Desborough, 2 Green, (N. J.,) Ch., 214; Walker v. McKnight, 15 B. Monr., 476; Freem. on Judg., sec. 589 and cases cited; Bombay v. Boyer, 14 Serg. & R., 225; Gibson v. Winslow, 38 Tenn., 49; 6 Cow., 457; 1 Rich., (S. C.,) 18; Cook on Shffs. Sale, 406; 9 Wend., 53; Allen v. Stephanes, 18 Tex., 608; 8 Wend., 192.

GOULD, ASSOCIATE JUSTICE.

Appellant brought this action of trespass to try title to recover of the city of Navasota certain town lots. He claimed title by virtue of his purchase under an order of sale issued on a judgment recovered by John B. Farris against the city of Navasota for the sum of $873.30, in June 7, 1872, by which the sale of the lots in controversy was decreed to satisfy the vendor's lien. After the recovery of this judgment by Farris, and before the sale, the following instrument was executed:

“NAVASOTA, July 24, 1872.

The following agreement is hereby entered into by J. B. Farris, of the one part, and the members of the finance committee, (present,) B. Goodman, H. K. White, and Jim Hampton, of the second part: J. B. Farris agrees to withdraw his suit now pending against the city of Navasota for ($869 60/100) eight hundred and sixty-nine 60/100 dollars, and we, B. Goodman, H. K. White, and Jim Hampton, members of the finance committee, acting for and on account of the city of Navasota, agree to pay J. B. Farris two and a half per cent. per month on the above-named amount, $869 60/100, dating from the institution of said suit, and running to January 1, 1873. The committee also agree to pay the court fees in said suit; all of which is submitted to the board of aldermen for their action and approval. It is agreed the interest is to be paid in monthly installments.”

This instrument was signed by the parties, and approved on August 5th by the mayor and city counsel.

Notwithstanding this agreement the deputy sheriff of Grimes county, acting under instructions previously received from the attorney of Farris, in obedience to an order of sale issued July 16, 1872, and in ignorance of this agreement, proceeded to sell the lots on the first Tuesday in September, 1872, at the town of Anderson, at which sale the plaintiff, Owen, became the purchaser, for the sum of one hundred and thirty-five dollars. Owens paid the amount of his bid and received a conveyance from the deputy sheriff.

On the evening preceding the sale, the sheriff was told by Farris and the mayor to stop the sale, and promised to send word to his deputy at Anderson and stop it. It was in evidence that it was generally known at Navasota that the sale was not to take place, and the result was that sundry parties failed to be present, and that the lots sold for $135, when their value was $2,500. The deputy sheriff testifies that he received no message to stop the sale, and it does not appear that Owen, the purchaser, had any notice of the agreement. On the contrary, he testifies that he bought in good faith, and in ignorance of anything to prevent the sale.

The facts as to the agreement, notice to the sheriff, inadequacy of price, and the cause thereof, were set up in an answer, in which, whilst it was claimed that the judgment was satisfied, the court was asked to vacate the sale. There was, however, no proffer to return to plaintiff Owen the purchase-money paid by him, nor was the plaintiff in execution, Farris, made a party. The issue upon which the case was actually tried was the validity of plaintiff's title under his sheriff's deed.

The charge of the court was to the effect, that if the instrument of July 24th “referred to the judgment under which the land was sold, and the sheriff of Grimes county was notified by Farris the day before the sale of the arrangement between the parties, then the sale was absolutely void as against the defendant, and the plaintiff, whether acting in good faith or not, took no title.”

The jury having found for the defendant, and the plaintiff having appealed, the correctness of this charge is the main question presented.

We think the true construction of the agreement of July 24th is that the parties intended that there should be a stay of proceedings under the judgment until January 1, 1873. The terms used must be construed with reference to existing facts. The suit had already terminated in a judgment. The agreement is silent as to the principal debt, and provides only for interest up to January 1, 1873, and it seems unreasonable that it could have been designed to operate as a satisfaction or discharge of the debt or judgment.

If the judgment had in fact been satisfied in full prior to the sale, there are cases of high authority which hold that the sale is absolutely void, and confers no title on the purchaser, although there was nothing of record to show the satisfaction, and the purchaser bought in perfect good faith. (Hunter v. Stevenson, 1 Hill, S. C., 415; Wood v. Colvin, 2 Hill, N. Y., 566; Johnson v. Caldwell, 1 Conn., 622; Neilson v. Neilson, 5 Barb., 575; Myers v. Cochran, 29 Ind., 256;Trigg v. Ross, 35 Mo., 165.)

It is not our purpose to express any opinion on this proposition, as in this case it is not necessary that we should do so. In its terms it applies only to cases of judgment satisfied in full, and it is believed that its extension to other cases, apparently within its reach, has not been...