Smith v. Brown

• Decision Date: 22 October 1886
• Citation: 1 S.W. 573
• Parties: SMITH and another v. BROWN.
• Court: Texas Supreme Court

1 S.W. 573

SMITH and another v. BROWN.

Supreme Court of Texas.

October 22, 1886.

Appeal from Cherokee county.

C. G. White, for appellants. Whitaker & Bonner, for appellee.

GAINES, J.

This cause is before this court on appeal for the third time. The opinion on the second appeal is reported in 63 Tex. 131. The case now made is the same as that then presented and adjudicated, with one exception. In the opinion then rendered it was held that Donley, the plaintiff in the judgment of Donley against Duren et al., did not release Copeland, the surety of Duren on his writ of error bond, by causing the execution against his principal to be returned, under the circumstances shown by the statement of facts. On the last trial below, appellants introduced no proof upon this point, and the question is now eliminated from the case. In other respects, the evidence upon the last two trials would seem to be substantially the same.

Counsel for appellees, in their brief, again raise in this court a question decided on the former appeal. Under the execution in favor of Donley against Duren and Copeland, issued upon the judgment before referred to, a sale was attempted to be made of the land in controversy by the sheriff. Donley became the purchaser, and received the sheriff's deed. This deed was held by the court not to pass the title to Donley, because the land attempted to be conveyed was not described with sufficient certainty. This decision was in accordance with the former rulings of this court upon the question of the sufficiency of descriptions in sheriffs' deeds, and we see no reason at this time to question its correctness. The sheriff's sale did not take place until 1868, but Copeland, having signed Duren's writ of error bond in August, 1859, and the judgment in that case having been affirmed, and the lien thereby created having been kept alive by regular issue of executions, as this court has held, the officer's deed, if valid, would have divested Copeland's title at the latter date. This deed, however, not being valid, the title remained in him until September 19, 1861, at which time he conveyed the land to William Chambers, "as agent for his minor children," naming them. If this latter conveyance passed the legal and equitable title of the land to William Chambers alone, then, under the conveyances offered in evidence, appellee was entitled to recover the land in the court below, but if it only conveyed the legal title to Chambers in trust for the benefit of his minor children, named therein, then appellants ought to have had judgment. The court below took the former view of the instrument, and gave judgment accordingly. The construction of the court upon this deed is assigned as error, and we think the point well taken.

The language of the deed is: "Know all men by these presents that I, G. W. Copeland, for and in consideration of William Chambers' agreeing to a division of certain lands lying and being situate in said county of Cherokee, and embraced in a league of land granted to Larkin Baker, and for the further consideration of one dollar, to me in hand paid by said William Chambers as agent of his minor children, (the receipt whereof is hereby acknowledged,) do hereby grant, bargain, sell, and convey in quitclaim unto him, the said William Chambers, as agent as aforesaid, [describing the land,] to have and...