Robertson v. Moorer
| Decision Date | 01 January 1860 |
| Citation | 25 Tex. 428 |
| Parties | GILFORD ROBERTSON v. IRWIN D. MOORER. |
| Court | Texas Supreme Court |
A statutory bond for writ of error given to operate as a supersedeas, is a lien upon the real estate of the obligors situated in the county where the original judgment was rendered, and the lien takes effect certainly from the filing in the district court where the original judgment complained of was rendered, of the mandate of the supreme court, declaring (by affirmance of the judgment) the forfeiture of the bond. 25 Tex. S. 140.
The court inclines to the opinion that the bond operates as a lien from its date, but the point is reserved for further consideration.
An affidavit by a party stating that his adversary (who is the grantee) has possession of a deed, has been absent from the state for more than a year, still is absent, and his whereabouts unknown to affiant; that he has had no opportunity of procuring the instrument; that it is in existence, but knows not where it is, and cannot produce it, affords a sufficient predicate for the admission of secondary evidence as to its contents.
It is not a valid objection to the admissibility in evidence of a replevin bond that, on its face, it does not appear to be connected with any suit by recitals of the names of the parties to the suit in which it was taken, nor of those of the parties in whose favor or against whom the execution issued, nor states the amount for which such execution may have issued.
APPEAL from Panola. Tried below before the Hon. R. A. Reeves.
Joseph M. Pelham, on the 16th of June, 1854, recovered a judgment in the district court of Panola county against Sherrod Hines for the sum of one hundred and fifty-six dollars and fifty cents. The defendant removed the cause for review to the supreme court, by writ of error, executing a bond for writ of error in double the amount of judgment, etc., so as to operate as a supersedeas; J. B. Turner and Jeremiah Albright being sureties on the bond. The judgment was affirmed by the supreme court against Hines and his sureties on the 24th day of April, 1855; on the next day the mandate of the supreme court to said district court was issued, and was filed in the latter court on the 2d day of June, 1855.
An execution was issued on the mandate by the district court on the fourth day of December, 1855. Albright enjoined it, giving bond as required by law. On the 20th of the same month and year, the injunction was dissolved, and judgment entered against the principal and sureties on the injunction bond.
Several executions were issued for the collection of the judgment of Pelham against Hines, the sureties on the writ of error bond, and the sureties on the injunction bond. One of them issued January 15, 1856, and was levied on a horse and buggy as the property of Jeremiah Albright, who gave a replevin bond with sureties, which was forfeited.
On the 9th day of May, 1856, an execution was issued against the sureties on the writ of error bond, the injunction bond, and the replevin bond, which was levied on the ten acres of land in controversy in this suit, and on the 7th day of October, 1856, was sold by the sheriff to I. D. Moorer, the plaintiff, for the sum of twelve dollars and fifty cents. The land was levied on and sold as the property of Albright; Hines having died since the judgment, and before the issuance of the execution, was not included in the writ. Albright sold the land to the defendant Robertson and Samuel B. Lacey, and executed to them a bond for title on the 8th day of October, 1855, which was authenticated and filed for record on the 30th day of August, 1856.
On the 10th day of April, 1857, Moorer brought this action of trespass to try title, against the appellant Robertson, and afterwards Samuel B. Lacey was also made a defendant.
The defendants pleaded by a general denial, and a special plea setting up their purchase aforesaid for a valuable consideration from Albright in good faith, and charging notice to the plaintiff of the existence of their claim and right at the time of the sale; and that the plaintiff did not pay to the sheriff the purchase money bid for said tract.
The defendants proved that they, by their attorney, gave notice at the sheriff's sale to the plaintiff and all others present, of their claim and title, and of the fact of the registration in that county of their said title. They also proved by J. P. Mason that before the issuance of the execution under which the sale was made, it was agreed between the district clerk of Panola county, the plaintiff Moorer, and the sheriff who sold the land, that if Moorer would buy the land at sheriff's sale, he need pay no money, but the clerk would credit the costs of clerk and sheriff with the amount of the bid; and accordingly he paid nothing, except two dollars to the sheriff for his deed. The sheriff indorsed the amount of the bid as a credit on the execution.
The plaintiff offered in evidence a replevin bond given by Albright, payable for four hundred and fifty dollars to J. M. Pelham, conditioned that, whereas the sheriff of Panola county has this day (28th day of January, 1856), by virtue of an execution from the clerk of the district court for Panola county, issued on the 15th day of January, 1856, levied on the following property, to wit: One bay horse and buggy, as the property of Jeremiah Albright, to satisfy said fi. fa., and, whereas, said Albright has replevied the same: Now, if the said Albright shall deliver the said property to the sheriff at the court house in the town of Carthage, on the 16th day of February, 1856, then this bond to be null and void, otherwise to remain in full force and virtue. Signed by the principal and sureties, approved by the sheriff, and indorsed To the reading of which the defendants objected, because the same was too indefinite, not describing any parties to any suit; nor the suit in which it was taken; nor the party in whose favor it issued; nor the amount for which it was issued; which objections were overruled, and the defendants excepted.
The plaintiff introduced J. R. Williams to prove the existence and contents of a deed from himself to Jeremiah Albright to the land in controversy, the plaintiff first having made affidavit in substance as follows: “That a deed to the land in suit was made by the witness to Jeremiah Albright on the 23d day of January, 1855, and delivered to him by the witness; that Albright was absent from the state since some time in 1856; that deponent does not know where he is, and has had no opportunity of procuring the deed; that he cannot procure the original; that witness informed him that such a deed was in existence, and was made and delivered by him to said Albright; and he does not know where the deed now is; that affiant has never had it in possession.” Defendant objected to the evidence offered, because it would be a substitution of parol for written evidence, without a sufficient predicate having been laid. The objection was overruled, and the defendants excepted.
The court charged the jury that the bond for the writ of error executed by Hines, Turner and Albright, on the 14th day of November, 1854, has the force and effect of a judgment, and operated as a lien on the lands of these parties situated in Panola county, from the date of the bond, and if the jury find from the evidence that Albright was then the owner of the tract, or acquired it afterwards, it was liable to sale under the execution; and if it appears that the plaintiff was the purchaser, he would be entitled to recover. But if they should find, from the evidence, that Albright had, before the date of the bond, sold the land to the defendants, they would be entitled to a verdict.
The defendants asked the court to charge the jury, “that if they believe from the evidence that there was a combination between the plaintiff and the sheriff who sold the land, or between said plaintiff and any other person or persons, to obtain the land in controversy for nothing, or for an inconsiderable price, very greatly below its value, the defendants are entitled to a verdict.” Which charge the court refused to give.
The jury found a verdict for the plaintiff for the land described in the petition, and judgment was rendered accordingly.
The appellant assigns as grounds of error:
The admission of the testimony of J. R. Williams, to the introduction of which they had objected.
The charge given by the court.
The refusal to grant a new trial
That the verdict of the jury was contrary to the law and the evidence.
The overruling of the objections of the defendants to the introduction as evidence, the replevin bonds.
The refusal by the court to give the instructions asked by the defendants.
Martin Casey, for the appellant. The only provision of our law which can give countenance to the charge of the court is art. 793, Hart. Dig., where it is provided writs of error may be granted, but shall not operate as supersedeas unless bond be filed, conditioned “that the party shall comply with the judgment, order or decree of the supreme court upon such writ, and well and truly pay all such damages as may be awarded against him; which bond shall have the force and effect of a judgment against all the obligors, upon which execution may issue in case of forfeiture.
Art. 1624, Hart. Dig., provides, “That whenever final judgment shall be rendered by any of the courts of record of this republic, it shall operate as a lien on all the real estate of the defendant in the county where the judgment was rendered, from the day of the date of the judgment,” etc.
This article contemplates those judgments only that are rendered by courts of record, solemnly adjudicating some matter in issue between the parties; and all such judgments are formally entered on the minutes of the courts, so as to enable any person...
To continue reading
Request your trial
-
Black v. Epperson
...Dig. art. 3783, which we think was the only statute in force upon the subject at the time the judgment was rendered. See also Robertson v. Moorer, 25 Tex. 428, and Berry v. Shuler, 25 Tex. S. 140. The statute of February 14, 1860, was enacted subsequent to the rendition of the judgment; and......