Stroud v. Casey

• Decision Date: 01 January 1860
• Parties: S. M. STROUD AND ANOTHER v. MARTIN CASEY AND ANOTHER.
• Court: Texas Supreme Court

25 Tex. 740

S. M. STROUD AND ANOTHER

v.MARTIN CASEY AND ANOTHER.

Supreme Court of Texas.

1860.

The plaintiff in execution, and his attorney who recovered the judgment, are deemed to be purchasers with notice of all errors and irregularities in the proceedings and judgment in the suit; and where the plaintiff bought a tract of land at sheriff's sale on execution, under a judgment in his favor, and conveyed the same to the attorneys who procured the judgment, and the judgment was afterwards reversed by the supreme court for error therein, held, that the reversal of the judgment puts an end to the title so acquired.

It is perfectly well settled, that where there has been a sale under execution of lands or goods, and a stranger is the purchaser, bona fide, his title will not be affected by the subsequent reversal of the judgment.

Where the plaintiffs in an action of trespass to try title, recover judgment for the land against a defendant claiming the land, whose vendor is also made defendant, against whom the first named defendant recovers in the same suit a judgment for the purchase money paid by him; on appeal, to this court, if it appear that the plaintiff's title is insufficient to recover on, and the judgment rendered in their favor be reversed, the judgment for the defendant against his codefendant depending upon the former, will also be reversed.

APPEAL from Rusk. Tried below before Hon. C. A. Frazer.

This suit of trespass to try title to a certain tract of land in Rusk county, was begun by Jesse Forrest v. Thomas G. Aikin. During its progress Thomas Pitner and Martin Casey intervened and asked to be substituted as plaintiffs in the stead of Forrest, alleging that the plaintiff since the institution of this suit had conveyed the land in controversy to them. Pitner afterwards died, and Sampson Christie, executor of his will, became a party. The defendant Aiken suggested that he had purchased from S. M. Stroud, who was also made a party. Forrest alleged in his petition ownership to the land derived through a sale by the sheriff, on the third day of January, 1854, on an execution in his own favor issued against one Jesse Hitson, for two thousand dollars, founded on a judgment obtained by said plaintiff by said Hitson for said amount, in the year 1853; and that at the time of the levy said land was possessed and claimed by said Hitson; and that he bid one hundred dollars for said land, and paid the amount of his said bid to the sheriff, who made to him on the third day of January, 1854, a deed to the same; which was made a part of the petition.

Pitner and Casey alleged that after the institution of this suit, to wit, on the 23d day of May, 1854, the plaintiff, Forrest, sold and conveyed to them all his right, title and interest to the land sued for; and attached to their petition a deed thereto from said Forrest, as an exhibit, bearing date with the day of sale as above stated. An amended petition filed by Pitner and Casey alleged matters of fraudulent combination between S. M. Stroud and Hitson, to defeat the title claimed by them under said sheriff's sale, which need not be stated in this place.

The defendant Aiken pleaded that he was a purchaser of the land in question for a valuable consideration, to wit, nine hundred dollars, from one S. M. Stroud, whose bond for title he still held; that on said purchase he had paid to Stroud four hundred and ten dollars, and prayed that Stroud be cited to defend this suit, and that if plaintiff recovered the land for judgment against Stroud for the amount so paid him.

Stroud entered himself a party defendant to defend the suit for his tenant, Thomas Aiken--he pleaded the general issue and answered specially, that “the pretended sale of said land under execution against one Jesse Hitson was illegal and void; that said judgment from which execution issued, was obtained by Jesse Forrest, the plaintiff in suit, against Jesse Hitson, and afterwards, to wit, at the sitting of the supreme court at Tyler, the said judgment was reversed and declared erroneous, of which the said Jesse Forrest had notice.” Said answer further alleges that the said land was bid off by said Forrest, and that no other consideration was paid than the credit entered by the sheriff on said execution, and that the same did not extinguish any indebtedness of said Hitson, there being then no subsisting judgment against him. Stroud answered further, denying that Hitson ever had title to said land, but that at the date of the sale and at the commencement of this suit, the title thereto was in himself.

Casey and Pitner's executor, S. Christie, by way of amendment, replied, that the judgment obtained by Forrest against Hitson in the district court at the fall term, 1853, was afterwards reversed in the supreme court, and was remanded for further proceedings, and said cause being removed to the county of Nacogdoches, at the spring term of the district court for said county, A. D. 1857, a final judgment was entered against said Hitson for the sum of two thousand and five hundred dollars, and costs of suit, which judgment remains unsatisfied. The amendment or replication referred to a transcript of the record of said cause, filed therewith as a part thereof. Also that they purchased the land in good faith from Forrest, without notice of the reversal of the original judgment in favor of Forrest against Hitson at the time of making the purchase; that they paid to Forrest at the date of the deed to them the consideration recited therein.

The plaintiff on the trial introduced the original judgment and execution in his favor heretofore referred to, against Hitson; the former rendered in the district court of Rusk county on the 26th day of November, 1853, for the sum of two thousand dollars; the latter issued upon said judgment on the 5th day of December, 1853, and levied upon the land the 9th day of December, 1853. The sheriff indorsed upon the execution a credit of one hundred dollars, by the sale of the land. The plaintiff introduced and read the sheriff's deed to said land. The only facts proved on the trial material to be recited under the view taken of the case by this court are, that Casey and Pitner were the attorneys for Forrest in his suit with Hitson; recovered for him the judgment; that they introduced and relied upon their deed from Forrest, dated May 23d, 1854; that the judgment against Hitson, as was admitted on the trial, was reversed by the supreme court at Tyler, A. D. 1854, after the sale by the sheriff; and it was proved that on another trial in the district court of Nacogdoches county, A. D. 1857, judgment was again rendered for the plaintiff, and for a larger amount, to wit, two thousand five'hundred?? dollars and costs of suit.

The judge instructed the jury to find for the plaintiff if the land described was levied on sold, bid off, etc., as alleged by the plaintiff, by virtue of an execution issued on the plaintiff's judgment against Hitson “before the judgment was reversed by the supreme court, which is to be presumed unless the reverse appears from the evidence.” The jury were instructed further, in effect, to find for the defendants, if Hitson had derived his title to the land by a purchase from Stroud, taking his bond for title, and not having paid the purchase money before the rendition of the judgment against him under which the sheriff sold, they, Hitson and Stroud, had rescinded and canceled their contract and sale. They were instructed, that, to entitle plaintiff to recover, he must have paid a consideration, and if the amount of his bid was placed to the credit of Hitson on the judgment, that was a sufficient consideration to support the sale. The jury found for the ““plaintiffs or intervenors,” the land in controversy against the defendants Aiken and Stroud; and for the defendant Aiken against the defendant Stroud nine hundred dollars. Thereupon the court adjudged that Martin Casey and Sampson Christie, executor of the will of Thomas Pitner deceased, recover the possession of the land in controversy; and by its decree divested said defendants of their right, title and interest thereto, and vested the same in said intervenors, and ordered a writ of possession to issue in accordance with the judgment and decree aforesaid. The court further adjudged that the defendant, Thomas Aiken, recover from S. M. Stroud nine hundred dollars.

A motion for new trial in behalf of the defendants being overruled, they appealed to the supreme court, and among other things assigned as error that the court erred in the instructions given to the jury. It is needless to notice other grounds assigned in respect to the judgment in favor of Casey and Pitner's executor. The defendant Stroud assigned as error that the court erred in charging the jury that the defendant Aiken was entitled to recover against him; in rendering judgment against him in favor of Aiken upon the verdict and the facts of the case; and in refusing to grant a new trial, as between Aiken and himself.

W. Stedman, for appellant S. M. Stroud. 1. It is assigned for error that the court erred in its charge. There can be no doubt that a purchaser under an execution issued upon a judgment which is afterwards reversed, acquires the title of the defendant in execution, and is not affected by the reversal, provided he is a stranger to the judgment; but it is equally well settled that, if the plaintiff in execution is the purchaser, the reversal of the judgment puts an end to his title, and he must restore the thing in specie, and not merely the value for which it was purchased, because he is chargeable with notice of every irregularity attending the proceedings. Dater v. Troy T. & R. R. Co. 2 Hill (N. Y.), 632;Woodcock v. Bennett, 1 Cow. 737;Bank of the U. S. v. Bank of Washington, 6 Pet. 18;Hubbell v. Adm'r of Broadwell, 8 Ohio, 120, 128; see also 3 Bac. Abr. pp. 389-90. The rule deducible from these authorities is, where...