Stock v. Hartgraves, 12224

• Decision Date: 17 January 1951
• Docket Number: No. 12224,12224
• Citation: 236 S.W.2d 257
• Parties: STOCK v. HARTGRAVES.
• Court: Texas Court of Appeals

Page 257

236 S.W.2d 257

STOCK v. HARTGRAVES.

No. 12224.

Court of Civil Appeals of Texas, San Antonio.

Jan. 17, 1951.

Rehearing Denied Feb. 14, 1951.

Davenport & Davenport, San Angelo, for appellant.

Newman & McCollum, Brady, Perry Hartgraves, Menard, for appellee.

W. O. MURRAY, Chief Justice.

This suit was originally instituted by Howard Sanders as plaintiff, Perry Hartgraves afterwards being substituted as plaintiff, against Henry Stock, seeking to recover the title and possession of a part of Lot No. 6, in Blick H, of Greer's First Addition to the City of Menard, Menard County, Texas, the same being fully described in plaintiff's petition. The case was submitted to the trial judgme upon an agreed statement of facts, such as is provided for by Rule 263, Texas Rules of Civil Procedure, and judgment was rendered in favor of the substitute plaintiff for title and possession of the portion of the lot sued for and for damages, from which judgment Henry Stock has prosecuted this appeal.

In January, 1948, Garland E. Branham, in Cause No. 1972 in the District Court of Menard County against Henry Stock, obtained a judgment foreclosing vendor's lien notes against the property in controversy. Order of sale was issued and the property was advertised and sold to the highest bidder, Howard Sanders, on September 14, 1948, for the sum of $2,100. The full amount of the judgment was paid to and accepted by Garland E. Branham on that date, and the balance of the $2,100, amounting to about $650, was tendered to appellant and refused by him at that time.

Shortly thereafter it was discovered that the sale was not made on the first Tuesday in September, as is required by Article 3804, Vernon's Rev.Civ.Stats., and therefore another order of sale was issued, the property advertised and again sold, on the first Tuesday in November, to the same Howard Sanders, who was also the highest bidder at the first sale. No money was actually paid after this second sale, it evidently being presumed that the money having already been paid under the first sale, it was unnecessary to pay it again.

The contention of appellant herein is that the first sale was void because it was held at a time not authorized by Article 3804, supra, and that the second sale was void because the holder of the judgment had been paid in full before the second order of sale was issued. We overrule this contention. The parties agree and we hold that the first sale of September 14, 1948, was wholly void, having been held at...