Sydnor v. Roberts

• Decision Date: 01 January 1855
• Citation: 13 Tex. 598
• Parties: JOHN S. SYDNOR AND OTHERS v. JOHN S. ROBERTS AND ANOTHER.
• Court: Texas Supreme Court

13 Tex. 598

JOHN S. SYDNOR AND OTHERS

v.JOHN S. ROBERTS AND ANOTHER.

Supreme Court of Texas.

1855.

Appeal from Galveston. The appellees Roberts and Phillips instituted two actions of trespass to try title in the District Court of Galveston county, on the 25th October, 1849: one against Robert Moffatt to recover lot No. 9 in block 680, the other against Benjamin S. Parsons to recover lots 4, 5, and 6 in the same block in the city of Galveston.

The original defendants were the tenants in possession, and at the ________ term 1848, the appellants Sydnor, Cobb and Powers entered themselves defendants in the room of the tenants, answered, and the two suits were consolidated. At the fall term 1849 there was trial and judgment for the plaintiffs in the court below, now appellees; and the defendants appealed.

The evidence of plaintiffs' title was:

1st. The patent from the republic of Texas to M. B. Menard for a league and labor of land on the east end of Galveston Island, on which the city of Galveston is situated.

2d. An act of congress of the republic approved Feb. 5th, 1841, to incorporate the Galveston City Company, with the power, among others, to hold and convey real estate. Sec. 1st: its affairs to be managed by a Board of five Directors, three of whom could act.

3d. A deed made June 1, 1843, from M. B. Menard to Love, Jones, Menard and Williams, the Board of Directors of the Galveston City Company, conveying the said league and labor of land.

4th. A deed made Feb. 5, 1841, from Love, Jones, Menard and Williams, the actual and acting Board of Directors of the Galveston City Company, to said Roberts and Phillips, conveying the lots sued for.

5th. It was agreed that the original defendants Moffatt and Parsons, claiming under Sydnor, &c., were in possession respectively of the premises, as charged in the petition, on the 1st January, 1847, and had remained so to the time of bringing the suits; also proof of possession from February 1st, 1847.

The pleadings and evidence of the defendants Sydnor and others were as follows: On the 24th November, 1847, they pleaded not guilty of the trespass and ejectment charged. On the 12th December, 1848, they amended their answer, and alleged specially that they had purchased the lots or parcel of ground sued for from Winston and wife, who purchased from R. P. Jones, who purchased from C. M. Gould, who purchased from H. M. Smyth, sheriff of Galveston county, referring to the several deeds; that the sheriff of Galveston had sold the lots by virtue of two certain judgments against the plaintiffs and one George Allen, rendered in Nacogdoches county, and of two executions issuing thereon, transcripts of which, on file, were also referred to; that defendants had purchased and paid a full consideration for said lands long subsequent to the sheriff's sale, without notice of any claim, right, or title on the part of the plaintiffs.

On the same day, plaintiffs amended their petition charging that the pretended judgments, executions and sheriff's sale were null and void, and that no legal and sufficient title to the premises was held by defendants in virtue thereof.

Defendants' evidence of title was, 1st, two judgments recorded in the District Court of Nacogdoches county against Roberts, Phillips and Geo. Allen, in May, 1841.

2d. An execution on each of these judgments issued to Nacogdoches county June 26, 1841, indorsed “reissued Dec. 23, 1841, R. Parmlee, C. D. C.,” returned April 8th, 1842, by the sheriff, in substance as follows: Called on Roberts and Philips, no property pointed out; called on C. M. Gould, plaintiffs' attorney, and ordered to stay further proceedings until further orders. Indorsed “reissued February 25th, 1843, R. Parmlee, C. D. C.”

3d. An alias execution on each judgment to Nacogdoches county, July 17, 1843, which were returned by the sheriff, levied on the plantation of John Durst on the Angelina river, containing 2,600 acres, appraised at $8,500 offered for sale, but no sale for want of bidders.

The return on one of these executions showed that the property was “levied on as the property of Roberts and Phillips, pointed out by Charles S. Taylor, defendants' attorney and plaintiffs' attorney.”

The return on the other showed that the property was levied on as the property of John Durst, pointed out by Charles S. Taylor, attorney for John Durst.

4th. A pluries execution on each judgment issued December 19, 1843, to Galveston county, indorsed “ pluries fi. fa. with appraisement.” They were levied on the lots in controversy, as the property of Roberts and Phillips, pointed out by the attorney of the plaintiffs in execution, advertised, the sale postponed a month; advertised again, appraised and sold at two-thirds of the appraised value, and purchased by Charles M. Gould, and the sheriff's return stated that the purchase money was receipted for by Charles M. Gould, for Kaufman & Gould, attorneys for plaintiff.

The sheriff's deed on its face specified that the property was pointed out by plaintiffs' attorney, showed the amount of the appraisement, and the amount of the bids, and that the sale was for only two-thirds of the appraised value, and purchased by Charles M. Gould.

The judgments, executions and sheriff's returns were admitted in evidence by the court, but the sheriff's deed and the subsequent conveyances were ruled out.

Verdict and judgment for the plaintiffs.

R. H. Howard, for appellants. The court erred below in refusing to admit the deed of the sheriff of Galveston county as evidence of title for defendants. The deed of the sheriff ought clearly to have been admitted because,

1st. It was made in pursuance of a valid and subsisting judgment against the plaintiffs to this suit, and in obedience to an execution regular upon its face. (Wheaton v. Sexton, 4 Wheat. R., 503.)

2d. It was a deed made by the sheriff in obedience to a mandate which he was compelled to obey. (7 J. J. Marsh, 150;2 Bibb, 201, 518;2 Id., 216;4 Id., 332.) If this was a process under which the officer could justify in an action of trespass, it passed the title to the purchaser. (Jeanes v. Wilkins, 1 Ves. Len. R., 194; Blaine v. The Ship Charles Carter, 4 Cranch, 127.)

Admitting the proceedings to have been irregular, plaintiffs could not attack them in the collateral action of ejectment, but his proper remedy was to have moved the court from which they issued to have set them aside. (4 Cranch, 127; 3 Wash. C. C. R., 546; 16 Johns. R., 126;16 Id., 574;8 Id., 364;13 Id., 101, 463.)

These authorities and many others which might be cited go fully to the point, that where there is a regular and valid judgment no defect in the execution or sale will be permitted to be shown, except upon a direct motion for that purpose. This point is fully discussed and decided also in support of these views in the 10th of Peters, 449, Voorhies v. Bank of the United States, and cited by this court with approbation. (Vide also 1 Hayw., 32; Smedes and Marsh, 602.)

W. P. Ballinger, for appellees. I. The title of the appellants was insufficient because the executions to Galveston county on which the sale was made were void:

1st. Because they isued contrary to law.

The right to issue execution to another county depended on the fact that the defendants did not have property in the county where judgment was rendered. How was it to be ascertained that the defendants did not have sufficient property in the county in which judgment was rendered?

The statute is not express in terms on the subject. But the common law which governs in the silence of the statute, and the evident spirit and policy of the statute itself, leave no doubt as to the manner in which the want of sufficient property was to be ascertained and shown. (See Archibald's Practice, 266; Tidd's Practice, 929.) The execution must issue in the county in which the venue was laid, and upon a return of nulla bona by the sheriff the plaintiff could have a testatum into another county.

The sheriff is the officer whose official duty it is to ascertain facts respecting the defendants' property. The clerk is not.

It is confidently maintained that no other construction can be given to the execution law of Texas, than that there must be an execution to the county in which judgment is rendered, returned by the sheriff that he can find no sufficient property, before execution can be lawfully sent to another county. As to the facts in this case, there is no pretense that there was any such return, nor is there any pretense that it has been shown aliunde. On the contrary the returns on the executions which issued immediately previous to Nacogdoches county show a levy on property valued at $8,500. That levy was accepted by the sheriff, and prima facie the title was such as to render it a good levy. (Wolford v. Phelphs, 2 J. J. Marsh, 34.) The levy was also accepted by the attorney of the plaintiffs in execution, and the property was given up for levy by the attorney of John Durst. The levy is therefore good. Besides, it does not lie in the mouths of these parties to object to it.

The conclusion cannot be escaped that the executions to Galveston county were not authorized by law. The question, however, whether being so issued contrary to law they were void or only voidable is one of more difficulty, and turns on one of the most vexed distinctions in the law books. Bacon, in his chapter on ““Void and Voidable,” (7 Bacon's Abridgment, 64,) says, “A thing is void which was done against law at the very time of doing it, and no person is bound by such an act.” All the authorities on this subject are reviewed in the most elaborate and conclusive manner in the case of Woodcock v. Bennett, (1 Cowen, 711,) to which case the attention of the court is especially requested. Page 739, remarking on the distinction between an execution issued a year and day after judgment without scire facias, which they decide only voidable, and an execution issued when one of the...