Smith v. Perkins

• Decision Date: 19 May 1891
• Citation: 16 S.W. 805
• Parties: SMITH <I>et al.</I> v. PERKINS <I>et al.</I>
• Court: Texas Supreme Court

16 S.W. 805

SMITH et al. v. PERKINS et al.

Supreme Court of Texas.

May 19, 1891.

Commissioners' decision. Appeal from district court, Montague county; F. E. PINER, Judge.

Stephens & Herbert and Sparks & Smith, for appellants. Jameson & Chambers and Davis & Harris, for appellees.

MARR, J.

"On March 14, 1887, appellants, Fannie B. Smith and W. McB. Smith, filed this suit in district court of Montague county to recover of the appellees, J. S. and Martha Perkins, 220 acres of land out of the S. & M. G. R. R. Co. survey No. 1, situated in Montague county, Texas, and for $1,000.00 damage. The appellees pleaded not guilty, and in reconvention that they were in possession and owners of the land sued for, by a regular chain of title from the heirs of E. J. Jones, deceased, to appellee M. C. Perkins, the wife of J. S. Perkins; that appellants had a fraudulent, void, and pretended claim to the land, and that plaintiff claimed the land under judgment rendered in J. P. court of Clay Co., Texas, by J. K. Bass, J. P., October 24, 1877, in favor of Wm. Watson vs. E. J. Jones for $32.70, and costs; that execution issued upon said judgment, and was levied upon 440 acres of land, of which the land in controversy is a part; that sale was made thereunder the first Tuesday in May, 1878, when said 440 acres was bid in by J. K. Bass for sum of five dollars; that at date of sale the land in controversy was worth $500; that the execution under which sale was made was void because issued by Bass for his own and other costs, and for payment of the principal judgment, and, further, because said land levied on was pointed out and purchased by Bass, while he acted as justice of the peace; that appellants, through their chain of title, had notice of such facts; that Jones (under whom both parties claim) died intestate in year 1879. The appellees pleaded further that said execution was void because issued in the name of plaintiff in said suit, instead of in name of officers of the court, praying for affirmative judgment against appellants, removing cloud from title. They also tendered in court the amount of Bass' bid, ($5,) with interest. Appellants and appellees both claimed the land in controversy through E. J. Jones as common source. Case tried before the court, a jury being waived, which resulted in judgment against appellants in favor of appellees for all costs incurred in the prosecution of the suit, and judgment in favor of appellees for recovery of the land in controversy, canceling sale of the 440 acres of land sold by the sheriff to Bass, and the deed made to Bass by the sheriff, from which judgment the appellants by appeal bring said cause to this court for review."

The matters of fact set forth in the above plea in reconvention of the defendants were proven, and the court below held the execution, sale, and sheriff's deed to be void, but upon what precise ground does not appear, as there are no conclusions of law and fact in the record. The defendant also pleaded that the execution and sale were irregular and void because the writ of execution was issued to the county of Montague, before any had been issued to Clay county, where the judgment was rendered; but if this is of any importance, under the circumstances in which the question is now raised and presented, we are of the opinion that the point is not sustained by the record. As we understand from the statement of facts, an execution was issued to Clay county, November 10, 1877, "returned no property," and thereafter, on March 18, 1878, another writ was issued to the sheriff of Montague county, under which the land was sold on the first Tuesday in May of that year. Were it otherwise, we are of opinion that it would have been, at most, but an irregularity, insufficient to render the sale void. It was admitted that the appellants purchased the land sued for, and a part of the land sold at said sheriff's sale, from the purchaser thereat, J. K. Bass, and that the sheriff's deed and the deeds to appellants were duly recorded prior to any right or title to the land acquired by appellees. It was also admitted that appellees claim title to the land by deeds executed October 12, 1885, from the sole surviving heirs at law of said E. J. Jones, the defendant in the execution, and that the appellees "were in possession of the land in controversy at the date of the filing of this suit. It was further conceded that plaintiffs' vendor, J. K. Bass, the justice of the peace who rendered the original judgment and issued the execution, was identical with the J. K. Bass who purchased the land under the execution at the sheriff's sale, but there is no admission that plaintiffs were actually advised or cognizant of that fact. In the view we take of the case, it is unimportant to determine whether the similarity of the name in all of the proceedings in plaintiff's chain of title was sufficient to give them notice of the identity of the person. The appellants' assignments of error present the following propositions, so far as need be noticed, viz.: (1) That the court erred in holding that the execution sale and sheriff's deed thereunder were void, or even voidable; (2) that, if voidable only, the defendants should not have been allowed to impeach them in this suit, because the attack upon them is not made in any direct mode recognized by law, but is collateral only, and because no attack thereupon was made by any party at interest within the time allowed by law. It does not appear that E. J. Jones or any one else ever instituted any proceedings whatever to vacate or set aside the execution, the sale of the land, or the sheriff's deed thereunder, or objected to the same in any court, before the plaintiffs instituted this suit. The first attack, therefore, upon the proceedings, was made by the appellees in their above plea in reconvention, which was filed on the 2d day of October, 1888, — more than 10 years, in fact, after the sale of the land by the sheriff of Montague county to J. K. Bass, Esq. It is apparent from the statement of the case that, if the execution and sale of the land to said Bass are void, the judgment below should be affirmed, because in that contingency those proceedings would be ineffectual to pass the legal title, which would, of course, have remained in the execution debtor, E. J. Jones, and at his death descended to his heirs at law; and, as a consequence, the defendants, having acquired that title, and there being no adverse possession to sustain limitation, could not only attack those proceedings collaterally, but would be entitled to the land on account of the inherent strength of their own title. But we are unable to perceive any reason for holding those proceedings absolutely null and void. If the court below so held because Bass was the purchaser at the execution sale, then we think the court erred in that respect. Nay, more, we doubt if that fact would even render the proceedings voidable. We have been unable to find any provision of law, nor has any been cited, that forbids a justice of the peace from purchasing property sold at public vendue on an execution issued by him in a suit tried by him. There is manifest indelicacy and impropriety in the act; yet we cannot find that it is in contravention of any law. If that officer had been required by law to make the sale, or...