Reynolds v. Farmers & Merchants Nat. Bank

• Citation: 135 S.W.2d 556
• Decision Date: 01 December 1939
• Docket Number: No. 13990.,13990.
• Parties: REYNOLDS et al. v. FARMERS & MERCHANTS NAT. BANK OF NOCONA et al.
• Court: Court of Appeals of Texas

135 S.W.2d 556

REYNOLDS et al. v. FARMERS & MERCHANTS NAT. BANK OF NOCONA et al.

No. 13990.

Court of Civil Appeals of Texas. Fort Worth.

December 1, 1939.

Rehearing Denied January 19, 1940.

Error from District Court, Montague County; Hon. Earl P. Hall, Judge.

Suit by A. O. Reynolds and another against the Farmers & Merchants National Bank of Nocona, Tex., and others, in trespass to try title to recover certain lands. To review an adverse judgment, plaintiffs bring error.

Reversed and judgment rendered for plaintiffs.

H. M. Muse, of Wichita Falls, for plaintiffs in error.

Benson & Benson, of Bowie, for defendant in error.

BROWN, Justice.

Plaintiffs in error, A. O. Reynolds and Mary Wade Battles, a feme sole, brought suit in the District Court of Montague County against Farmers & Merchants National Bank of Nocona and C. McCall, defendants in error, in trespass to try title to recover certain lands in said county, and alleged that the deed, executed by the sheriff of Montague County, by virtue of an order of sale issued on a judgment obtained against Reynolds, was and is void, because the order of sale was issued February 28, 1933, in which the said sheriff was directed to make due return thereon within 30 days, but that said sheriff made his return showing that such writ came into his hands on February 28, 1933, that he advertised the property for sale to take place on May 2, 1933, that such advertisements were published on April 5, 1933, and the required subsequent dates, and that the land was sold on May 2, 1933, to said Bank, 63 days after the order of sale was issued, and that the sheriff's return was actually made 81 days after such writ was issued and placed in his hands.

It was further alleged that said Bank conveyed the lands on August 10, 1934, to said McCall, who was and is the president of the Bank, and that by reason of such facts and the knowledge had on the part of C. McCall, he was not an innocent purchaser of the property for value.

Plaintiffs prayed for a cancellation of the two deeds and to thereby remove the cloud cast upon their title by such deeds.

The defendants duly answered and specially excepted to the petition, as a collateral attack upon the sheriff's sale, and because the petition shows that plaintiffs' cause of action is barred by the 4 year statute of limitations (Art. 5529, R.C.S.), and specially pleaded the said 4 year statute of limitations and the 3 year statute (Art. 5507, R.C.S.) in bar of plaintiffs' right to recover, and also plead laches and stale demand.

The cause was tried to the court and judgment rendered that plaintiffs take nothing as against both defendants.

The plaintiffs have appealed and the parties will be designated as in the trial court.

The facts with reference to the issuance, service, sale thereunder and return of the order of sale, as alleged by the plaintiffs, are undisputed.

Art. 3784, R.C.S. of Texas provides that "the execution shall be returnable to the first day of the next term of the court, or in thirty, sixty or ninety days, if so directed by the plaintiff, his agent or attorney."

It has been uniformly held that a sale of real estate made under an execution after the return day on the writ is void, and the purchaser acquires no title thereby.

In Mitchell v. Ireland, 54 Tex. 301, the Supreme Court said: "If the defendants below have no other title than that derived through sale made under execution after return day thereof, then such title, as has been expressly decided by this court, is a nullity, and would confer no right. Hester v. Duprey, 46 Tex. 625; Young v. Smith, 23 Tex. [598], 600 ."

Thus it appears that the plaintiffs are entitled to recover unless they are precluded by some statute of limitations pleaded in defense of such right.

Defendants cannot rely upon Art. 5507, R.C.S., which provides: "Suits to recover real estate, as against a person in peaceable and adverse possession thereof under title or color of title, shall be instituted within three years next after the cause of action accrued, and not afterward."

This is sound because of such holdings and pronouncements as are found in Savage v. Rhea, Tex.Com.App., 33 S.W.2d 429, 433: "The deed from Mrs. Ohler, for the reasons above stated, was void and properly attackable by the defendant in error; it is therefore not such color of title as will support limitation by possession for three years. Garner v. Black, 95 Tex. 125, 65 S.W. 876; Burnham v. Hardy Oil Co. 108 Tex. 555, 195 S.W. 1139; Spikes-Nash Co. v. Manning (Tex.Civ.App.), 204 S.W. 374."

The Supreme Court expressly approved and adopted the holdings quoted.

In the last case cited—Spikes-Nash Co. v. Manning—this expression appears : "A void deed is neither title nor color of title"; and the opinion cites three Supreme Court decisions and one from a Court of Civil Appeals.

Defendants cannot rely upon Art. 5529, R.C.S., which provides: "Every action other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued and not afterward."

This is sound because the instant suit was brought to recover the real estate, and the cancellation of the void deed, under which defendants hold and claim title, and the removal of the cloud,...