Scott v. Wilson

• Decision Date: 15 May 1950
• Docket Number: No. 6061,6061
• Citation: Scott v. Wilson, 231 S.W.2d 912 (Tex. Ct. App. 1950)
• Parties: SCOTT v. WILSON et ux.
• Court: Texas Civil Court of Appeals

Page 912

231 S.W.2d 912

SCOTT v. WILSON et ux.

No. 6061.

Court of Civil Appeals of Texas, Amarillo.

May 15, 1950.

Poteet & Pruitt, Vernon, for appellant.

Leon Douglas and John A. Storey, Vernon, for appellees.

STOKES, Justice.

This is an action in trespass to try title instituted by the appellees, Les Wilson and his wife, against the appellant Henry Scott, to recover the title and possession of a town lot in the town of Vernon. The petition of appellants was in the usual statutory form and the material parts of appellant's answer consisted of a general denial and plea of not guilty.

It was stipulated at the trial that R. L. McNutt was the common source of title. McNutt had purchased the lot from Elizabeth Knipp on May 11, 1920 and, as part of the purchase price, he executed a promissory note in the sum of $1,000, to secure which a vendor's lien was retained by the grantor. Elizabeth Knipp transferred and assigned the vendor's lien note to D. O. Smith and J. M. Stafford and in 1922, they transferred and assigned it to J. W. Rogers. On October 4, 1923, Rogers instituted a suit in the district court of Wilbarger County to recover the amount due on the done and to foreclose the vendor's lien. Judgment was entered by that court on January 26, 1924, in favor of Rogers against McNutt for the sum of $1,426.27 and foreclosing the vendor's lien. On March 29, 1924, an order of sale was issued upon the judgment and placed in the hands of the sheriff of Wilbarger County who, according to his return on the order of sale, sold the lot to C. D. Greene for $443. On March 4, 1947, C. D. Greene sold and conveyed the lot to appellant, Henry Scott, for a recited consideration of $10. There is no deed in the record from the sheriff to C. D. Greene but the testimony showed the sheriff executed a deed to him and that for some reason not shown by the testimony, Greene did not want to take title in his own name but wanted it conveyed to his brother A. D. Greene. According to the testimony, another deed was then prepared and executed by the sheriff conveying the property to A. D. Greene and another return on the order of sale was likewise prepared and executed by the sheriff in which it was shown the property was sold to A. D. Greene. Neither of the deeds was filed for record nor was the amended return filed with, or attached to, the order of sale. The testimony showed they were retained by the attorney for the plaintiff in that case and were ultimately lost or destroyed. Whether the amended return was executed before or after the sheriff made his return and filed it with the district clerk is not shown, but the order of sale was returned under the original return, nothing being mentioned about an amended return. In establishing their title, appellees introduced the foreclosure proceedings in the case of J. W. Rogers v. R. L. McNutt; the transfer of the vendor's lien note to Rogers; the order of sale issued upon the foreclosure judgment; and a warranty deed from A. D. Greene conveying the lot to appellees for a recited consideration of $10. In order to establish the link in their chain of title between R. L. McNutt and A. D. Greene, from whom they purchased, appellees introduced an affidavit of W. Frank Edmonson of Dallas, who was sheriff of Wilbarger County when the original foreclosure was had and who sold the property under the order of sale. The affidavit was offered as an amended return upon the original order of sale. In the affidavit, the ex-sheriff stated that, pursuant to the order of sale, and after due compliance with all laws regarding notice and publication, he sold the property to A. D. Greene for the sum of $443 but that, in his return, he erroneously and inadvertently designated the purchaser as C. D. Greene instead of A. D. Greene. The affidavit was signed and sworn to at Dallas on April 9, 1947, twenty-three years after the property was sold and the original order of sale returned to the district court from which it had issued. Appellant objected to the introduction of the affidavit but his objection was overruled and the affidavit was admitted by the court as an amended return upon the original order of sale.

The case was submitted to the court without the intervention of a jury and judgment was rendered against appellant and in favor of appellees, decreeing to them the title and possession of the lot involved. Appellant duly excepted to the judgment and has brought the case to this court for review. He urges a number of assignments and points of error, the first of which is that the court erred in admitting in evidence the affidavit or amended return of the sheriff. From the foregoing statement it will be seen that the affidavit of the ex-sheriff of Wilbarger County constituted the only link which connected the title with A. D. Greene, from whom appellees purchased the property.

It has been held from an early day by the courts of this and many other states that a sheriff's return upon an execution or order of sale may be amended. The officer has the right to amend it at any time before it is returned to the court from which it issued, but he cannot, as a matter of right, amend it after it has been duly returned. In a proper case, the court will allow the return to be amended and the amendment will relate back to time when the original return was made. Hill v. Cunningham, 25 Tex. 26; Thomas v. Browder, 33 Tex. 783; Messner v. Lewis, 20 Tex. 221; Citizens State Bank of Clarinda, Iowa v. Del-Tex Inv. Co., Tex.Civ.App., 123 S.W.2d 450; Lawrence v. Aguirre, Tex.Civ.App., 59 S.W. 289; Scruggs v. Scruggs, 46 Mo. 271; Black Hills Brewing Co. v. Middle West Fire Ins. Co., 31 S.D. 318, 140 N.W. 687.

The proper procedure and the only permissible course to take in effecting an amendment of the return, after it has been made and filed in the court from which it issued, is to file an application therefor in the original suit from which the order of sale issued and give notice of it to all interested parties. Sparks v. McHugh, 21 Tex.Civ.App. 275, 51 S.W. 873; Houssels, et al. v. Pitts et al., Tex.Civ.App., 52 S.W 588; Toner v. Page et al., 91 Wash. 314, 157 P. 866; Hansen v. Smart Apartments, 185 Wash. 657, 56 P.2d 670.

It is well settled that statements made in an officer's return on an execution as to the levy made thereunder, the amount of the purchase price, the action of the officer in conveying or executing a deed to the property and the name of the purchaser, together with other material statements therein are conclusive on collateral attack. This is an action of trespass to try title between parties who were strangers to the original proceeding of foreclosure and the attack or effort made by appellees to change the return made by the officer when the property was sold under order of sale in 1924 is purely collateral. The purported amended return could not be substituted for the original return. Appellant's first assignment of error will, therefore, have to be sustained. Holden v. Ryan et al., Tex.Civ.App., 268 S.W. 1022; Smith et al. v. Perkins et al., 81 Tex. 152, 16 S.W....