Taylor v. Snow

• Citation: 47 Tex. 462
• Court: Texas Supreme Court
• Decision Date: 01 January 1877
• Parties: W. A. TAYLOR v. D. E. SNOW.

47 Tex. 462

W. A. TAYLOR

v.D. E. SNOW.

Supreme Court of Texas.

1877.

APPEAL from Hamilton. Tried below before the Hon. John P. Osterhout.

The facts are given in the opinion.

James C. Walker, for appellant, cited and discussed Paschal's Dig., art. 25; Freem. on Judg., 126, 131, 134, 330; Thouvenin v. Rodrigues, 24 Tex., 477;Selin v. Snyder, 7 S. & R., 166;Farr v. Ladd, 37 Vt., 156; Aultman v. McLean, 27 Iowa, 129; Penobscot R. R. Co. v. Weeks, 52 Me., 456; Morgan v. Burnett, 18 Ohio, 535; Segee v. Thomas, 3 Blatch., 11; DeVuindre v. Williams, 31 Ind., 444; Westervelt v. Lewis, 2 McL., 511; Riley v. Waugh, 8 Cush., 220;Hahn v. Kelley, 34 Cal., 391;Sharp v. Brunnings, 35 Cal., 528;Lawler v. White, 27 Tex., 250; Coit v. Haven, 30 Conn., 190; Nash v. Church, 10 Wis., 312;Richards v. Skiff, 8 Ohio St., 586;Gemmell v. Rice, 13 Minn., 400;Beech v. Abbot, 6 Vt., 586;Matter of Clark, 3 Denio, 167;Williams v. Stewart, 3 Wis., 773;Fletcher v. Holmes, 25 Ind., 458;Dunn v. Pipes, 20 La. Ann., 276; Bradford v. Bradford, 5 Conn., 127; Gates v. Preston, 41 N. Y., 113;Green v. Hamilton, 16 Md., 317;Mills v. Alexander, 21 Tex., 162; Rorer on Judic. Sales, 72, and note; Bohanan v. Hans, 26 Tex., 445;Moke v. Brackett, 28 Tex., 446;Lawler v. White, 27 Tex., 253;Grignon v. Astor, 2 How., 340;McMullen v. Guest, 6 Tex., 275;Butterworth v. Kinsey, 14 Tex., 500;Wilson v. Zeigler, 44 Tex., 660;Kegans v. Allcorn, 9 Tex., 34;Grassmeyer v. Beeson, 13 Tex., 530;Kitchen v. Crawford, 13 Tex., 520;Foot v. Stevens, 17 Wend., 483;Grassmeyer v. Beeson, 18 Tex., 753;Giddings v. Steele, 28 Tex., 755;Wyche v. Clapp, 43 Tex., 546;Hancock v. Metz, 15 Tex., 205;Coffee v. Silvan, 15 Tex., 354;Castro v. Illies, 22 Tex., 479;Andrews v. Richardson, 21 Tex., 287;Boggess v. Howard, 40 Tex., 153;Owen v. Navasota, 44 Tex., 521; Dewes v. Head, 3 Pick., 143;Harvey v. Richards, 1 Mason, 381;Garrett v. Gaines, 6 Tex., 441;Ellis v. Rhone, 17 Tex., 132;Glavecke v. Tijirina, 24 Tex., 672;DeLeon v. Owen, 3 Tex., 154;Moke v. Brackett, 28 Tex., 446;Hurt v. Horton, 12 Tex., 285;Wardrup v. Jones, 23 Tex., 489;Dean v. Nelson, 10 Wall., 172.

Sleeper, Jones & Kendall, for appellees.

MOORE, ASSOCIATE JUSTICE.

Appellant, as well as the appellees, claims to deraign title to the land in controversy in this suit, from Claiborne A. Johnson, to whom it was patented, July 17, 1845.

Appellant, who was plaintiff in the court below, claimed to have acquired his title through a deed from the sheriff of Bell county, dated December, 1851, to James A. Graves, as a purchaser at an execution sale, by virtue of a judgment rendered by the District Court of Bell county--in which county said land was then situated--at its Spring Term, 1857, in favor of James A. and Mary Graves, his wife, adm'r, &c., against said Johnson; while appellees deraign their title through a deed dated May 11, 1857, but not recorded until June 1, 1871, from Elizabeth A. Johnson, the mother, and sole heir of said Claiborne A. Johnson, the grantee of the land, and as whose property it had been previously sold by the sheriff under said execution.

On the trial of the case, the court instructed the jury, if they believed from the evidence that Claiborne A. Johnson was dead at the time suit by said Graves and wife was commenced, the District Court of Bell county acquired no jurisdiction of the subject-matter in litigation; that any judgment rendered against a dead man, without making his legal representatives parties, was void; that an execution issued upon such judgment, and all proceedings under it, would be also void, and could not be the foundation of a title to the land, and in such event the jury should find a verdict for the defendants.

Evidently this charge of the court is in direct conflict with the law upon the subject, as settled by the repeated decisions of this court. (Grassmeyer v. Beeson, 18 Tex., 753;Mills v. Alexander, 21 Tex., 154;Thouvenin v. Rodrigues, 24 Tex., 468;Rodriguez v. Lee, 26 Tex., 32;Bohanan v. Hans, 26 Tex., 445;Moke v. Brackett, 28 Tex., 443;Giddings v. Steele, 28 Tex., 732.) And as there can be but little doubt, when the record is examined, that it must have had a controlling influence with the jury in returning a verdict for appellees, unquestionably the judgment must be reversed, unless it plainly appears, looking to the entire record, that appellees should have recovered a judgment, had the instruction given the jury in this particular been altogether unexceptionable; and if appellant had recovered a judgment in the court below, it should be reversed by this court, because not supported or warranted by the evidence.

And such, appellees insist, the record shows, is manifestly the fact in this case; for, conceding it is said that a judgment cannot be impeached in a collateral action, by proof that the person, for or against whom it is rendered, died before its rendition, and that such judgment is valid and binding until avoided by a direct and appropriate proceeding for this purpose,--still, as property cannot be sold on execution issued on a regular and valid judgment, after the defendant's death, and even where an execution is previously issued during the life of the defendant, it is abated by his death, and property upon which the judgment operates as a lien cannot thereafter be sold by the sheriff by authority of such execution, it must follow, as appellees maintain, that there is manifestly as fatal a defect in appellant's title to the land for which he sues, as if the judgment from which the execution comes should be held to be an absolute nullity, and incapable, as the jury were told, of serving as the foundation for a title. For, say appellees, if it is conceded that judgments of courts of record, upon principles of public policy, and on account of the sanctity and respect in which their proceedings are held, cannot be controverted or impeached in a collateral proceeding, they insist that these principles are inapplicable, and cannot be invoked in support of an execution, or other process, to enforce or carry into effect such judgment, or to uphold and maintain, as valid and binding, acts, otherwise invalid, done under and in obedience to their commands.

There is no question that, in many cases, it has been held, if the defendant dies after judgment, and before execution has issued, that land of the decedent cannot be sold under an execution on such judgment until it is revived against the heirs. And even where the defendant dies after the execution has issued, and though it may have been levied, such execution, as is held by many courts will nevertheless abate, and the judgment must be revived before it can be enforced by process. And with us, it has been long since decided, that by the provisions of our probate laws, no execution can ordinarily issue against the administrator, or personal representative of a party against whom a judgment for money has been rendered. And though an execution is in the hands of the sheriff, and has been levied, if the defendant dies, the authority of the sheriff to sell under the execution is immediately at an end. (Conkrite v. Hart, 10 Tex., 140;Chandler v. Burdett, 20 Tex., 42;McMiller v. Butler, 20 Tex., 402.)

But we are not prepared to say that either of these cases to which we have referred sanctions so broad an application of the principle insisted upon by appellees, as claimed by them in support of this judgment. Unquestionably, where a defendant...