Terry v. Cutler

• Decision Date: 05 September 1893
• Citation: 23 S.W. 539
• Parties: TERRY v. CUTLER et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

23 S.W. 539

TERRY v. CUTLER et al.¹

Court of Civil Appeals of Texas.

September 5, 1893.

Appeal from district court, Grayson county; P. B. Muse, Judge.

Trespass to try title by Mary P. Terry against W. T. Cutler and others. Judgment for defendants. Plaintiff appeals. Reversed.

W. W. Wilkins, J. C. Edmonds, and G. G. Randell, for appellant. I. M. Standifer and Brown & Bliss, for appellees.

RAINEY, J.

This is an action of trespass to try title, brought by appellant against appellees, to recover the land in controversy. The facts are that, in 1859, A. Rhine, the then owner of the land, deeded same to W. M. Allen, part of the purchase money not being paid. In 1860, Rhine brought suit in Collin county for the unpaid purchase money, and a judgment of foreclosure was awarded him. An order of sale was issued, directed to the sheriff of Grayson county, which was returned, for want of time to sell after seizing the land and advertising the same for sale. An alias order of sale was issued, and delivered to the sheriff of Grayson county, and the land sold thereunder. A. Rhine became the purchaser, his bid being credited on the judgment, and the sheriff made him a deed. In 1865, A. Rhine, by warranty deed, conveyed the land to Isaac Rhine, who, in turn, by warranty deed, conveyed same to appellant, who paid her separate money for same. In 1874, W. M. Allen deeded the land to Joseph Bledsoe, and, in 1882, Bledsoe deeded part of the land to W. T. Cutler, and Bledsoe and Cutler deeded all of the land to part of appellees. Appellant made the executors of A. and I. Rhine parties, and prayed in the alternative that, if she could not recover the land, she be subrogated to the rights of A. Rhine under the foreclosure proceedings. Rhine's executors pleaded to the jurisdiction of the court, on the ground that they lived in Collin county, and the estates were administered there, which plea was sustained. Defendants filed exceptions to plaintiff's plea for subrogation, and pleaded the statute of limitation of ten and two years as against the judgment. The exceptions were sustained, and upon the trial the court instructed a verdict for appellees, from which an appeal was taken.

The first proposition to be considered is whether the sale of the land in controversy made by the sheriff of Grayson county under the alias order of sale, if the order of sale was directed to the sheriff of Collin county, is void, or voidable only. Appellant claims that sale made under such circumstances is voidable only; that the first order of sale vested the sheriff of Grayson county with power to sell the land, and convey a good title, and, as he had proceeded to seize and advertise for sale, he had the right to sell, whether an alias order of sale issued or not, notwithstanding the return day of the first had expired. In support of this position, he quotes various sections of Freeman on Executions. It is true that, in section 58 of said work, Mr. Freeman, in speaking of the writ of "venditioni exponas," says: "The venditioni exponas was so frequently issued as to create the impression that it was a writ of authorization, as well as of compulsion, and was necessary to enable the officer to proceed with the sale. Such was not the fact. It gave the officer no authority not previously possessed by him. Notwithstanding the return of the fieri facias, he could sell the property levied on as well without as with a venditioni exponas." This seems to apply more strictly to personal property, as the officer, by "levying the writ, obtains a right of possession and a special property in the goods seized, which continues after the return day, and authorizes him to sell as effectually as if the original writ remained in full force." But some jurisdictions hold a different doctrine as to real estate. Mr. Freeman, in the same section, says: "A levy upon real estate gives no special property, and no right of possession to the officer making the levy, and hence it has been inferred that, after the return day of the writ under which the levy was made, he occupies no official or other relation towards such property, and has no power to dispose of it, and thereby make effectual the lien created by the levy. Where this view prevails, an exception exists to the general rule that a venditioni exponas confers no authority, and it is then necessary, after the return day of an execution, that this writ issue to empower the officer to sell real estate levied upon, but not sold; and a sale without such writ is void." The supreme court of this state has held repeatedly that a sale of land under execution, made after the return day thereof, is void, and no title passes thereby. Hester v. Duprey, 46 Tex. 625; Mitchell v. Ireland, 54 Tex. 301; Cain v. Woodward, 74 Tex. 549, 12 S. W. Rep. 319. This being the rule of law in this state, the first order of sale, having become functus officio, cannot be looked to or relied on to aid the alias order of sale, if that was defective to the extent of being void. The alias writ alone conferred authority, if any, to sell, and from that alone the officer could derive authority to sell and pass title to the purchaser. "A sheriff or constable has no authority to act under a writ directed to another sheriff or constable, and, if he does so, a sale made by him is void." 2 Freem. Ex'ns, § 291, and authorities there cited. If the alias order of sale in this case was directed to the sheriff of Collin county, then the sale made thereunder by the sheriff of Grayson county was a nullity, and conveyed no title to the purchaser. Witt v. Kaufman, 25 Tex. Supp. 384; Bybee v. Ashby, 2 Gilman, 151; McKay v. Bank, 75 Tex. 181, 12 S. W. Rep. 529.

The appellee...