Teston v. Brannin

• Decision Date: 27 March 1924
• Docket Number: (No. 1610.)
• Citation: 261 S.W. 788
• Parties: TESTON v. BRANNIN.
• Court: Texas Court of Appeals

261 S.W. 788

TESTON v. BRANNIN.

(No. 1610.)

Court of Civil Appeals of Texas. El Paso.

March 27, 1924.

Rehearing Denied May 1, 1924.

Appeal from District Court, Eastland County; E. A. Hill, Judge.

Action by A. B. Teston against C. P. Brannin. Judgment for defendant, and plaintiff appeals. Affirmed.

W. F. Kelly, of Fort Worth, and Gilvie Hubbard, of Eastland, for appellant.

Butts & Wright, of Cisco, for appellee.

HIGGINS, J.

This is an action in trespass to try title in the statutory form brought by appellant against appellee on April 6, 1922. The suit involves the title to an undivided 133/360 interest in the northerly 51 8/10 acres of a tract of 81 7/8 acres in the Thos. Benson survey in Eastland county. It was agreed that W. D. Dowdy was the common source of title to the interest in controversy.

On October 2, 1906, Dowdy conveyed the 81 7/8-acre tract to Barton M. and Catherine Richardson, reserving a vendor's lien to secure the payment of certain purchase-money notes. October 9, 1906, Dowdy transferred the notes to L. B. Rivers. October 19, 1906, the Richardsons conveyed the 81 7/8 acres to A. B. Teston, who assumed the payment of said notes.

On February 3, 1910, in a suit in the district court of Eastland county in which Waples Platter Grocery Company was plaintiff and William Benson and others were defendants, judgment was rendered vesting in appellant title to the undivided 133/360 interest.

On July 19, 1911, in cause No. 2113, in the district court of Eastland county, L. E. and C. P. Brannin, executors of the estate of L. B. Rivers, recovered a judgment against appellant for $250.40, being 133/360 of the principal and interest due upon the purchasemoney notes aforesaid, with foreclosure of the vendor's lien on the 81 7/8-acre tract as it existed on October 2, 1906.

Upon writ of error to the Supreme Court this judgment on May 3, 1916, was reversed and judgment rendered in favor of the executors for the full amount of the unpaid principal, interest, and attorney's fees due upon such notes ($1,432.97) with foreclosure of lien. See Brannin v. Richardson, 108 Tex. 112, 185 S. W. 562. The mandate of the Supreme Court was returned to the district court and filed on or before September 18, 1916. The mandate was not recorded in the minutes of the district court, and after its return no further proceedings were had in the district court except as hereinafter indicated.

On October 10, 1916, an order of sale was issued by the clerk of the district court of Eastland county, reciting that on May 3, 1916, the Supreme Court of Texas had rendered the judgment above indicated, and directing the sale of the 81 7/8-acre tract in satisfaction thereof. The order of sale was regularly levied upon the land and the same sold the sheriff's deed, dated November 13, 1916, executed to the executors of the estate of L. B. Rivers, whose title in turn passed to appellee. Appellant asserts that the order of sale was void and the proceedings thereunder insufficient to divest him of title.

The first objection to its validity is that "the clerk of the district court has no authority to issue execution or order of sale on the mandate of the Supreme Court without further action by the trial court." From the argument it seems to be the contention that before the order of sale could lawfully issue out of the trial court it was necessary to record the judgment and mandate of the Supreme Court in the minutes of the trial court or some action taken by the latter court to make the judgment of the Supreme Court its own. This is untenable. Upon the rendition by the Supreme Court of the judgment which should have been rendered by the district court the case was finally disposed of and upon the filing of the mandate in the trial court nothing further remained for the latter court to do except to issue the necessary process to execute the judgment which the Supreme Court had rendered. The procedure observed in issuing the order of sale was in accordance with the statutes and decisions. Articles 1551 and 1567, R. S.; Burck v. Burroughs, 64 Tex. 447; Conley v. Anderson (Tex. Sup.) 164 S. W. 985; Irvin v. Ferguson, 83 Tex. 491, 18 S. W. 820; Martin v. Rice, 16 Tex. 157; Lemmel v. Pauska, 54 Tex. 505; Cook v. Sparks, 47 Tex. 28; Blair v. Sanborn, 82 Tex. 686, 18 S. W. 159.

It is further objected that the order of sale and sale thereunder is void "because the judgment is not described, in that it does not appear from said order of sale in what county in the state of Texas the cause in which such order of sale was issued originated," and "because the order of sale fails to correctly describe the judgment upon which the same was issued, in that the names of the parties and the number of the cause is not correctly given."

The order of sale reads:

"The State of Texas to the Sheriff or Any Constable of Eastland County — Greeting:

"Whereas, on the 3d day of May, A. D. 1916, L. E. Brannin and C. P. Brannin as executor of the estate of L. B. Rivers, deceased, recovered a judgment in the Supreme Court of Texas, and said judgment was certified below for observance and execution against A. B. Teston for the sum of fourteen hundred thirty-two and 97/100 dollars with interest thereon from the 3d day of May, A. D. 1916, at 10 per cent. per annum and all costs of suit, with a foreclosure of a vendor's lien on the above-described real property, situated in the county of Eastland, and state of Texas, to wit: [Here follows description of the 81 7/8-acre tract.]

"Said vendor's lien is foreclosed as against A. B. Teston, Barton M. Richardson and Catherine Richardson and all other persons claiming title under them or either of them since the commencement of this suit, as it existed on the 2d day of October, 1906, and that said property be sold as under execution in satisfaction of said judgment.

"Therefore you are hereby commanded that you seize the described property, and sell the same as under execution. And should the proceeds of said sale be insufficient to satisfy said judgment, interest and costs of suit and the further costs of this writ, then of the goods and chattels, lands and tenements of the said A. B. Teston you will cause to be made said sum of money then remaining unpaid.

"Herein fail not, and have you the said moneys, together with this writ, showing how you have executed the same, before said court, at the court house thereof, in Eastland within sixty days from this date.

"Witness, Elzo Been, clerk of the district court of Eastland county, Texas.

"Given under my hand and the seal of said court at office in Eastland, this the 10th day of October, A. D. 1916. [Signed] Elzo Been, Clerk District Court, Eastland County, Texas. [Seal.]"

Upon the back of the same is indorsed the style and number of the suit as it appears upon the minutes of the district court of Eastland county, the names of the plaintiffs and defendants, date of the judgment rendered by the Supreme Court, amount, rate of interest, and bill of costs. Article 3729, R. S., prescribes the requisites of the order of sale. It was a substantial, if not a complete, compliance with the law. Collins v. Hines (Tex. Civ. App.) 100 S. W. 359; White v. Taylor, 46 Tex. Civ. App. 471, 102 S. W. 474; Sykes v. Speer (Tex. Civ. App.) 112 S. W. 425; Simmons v. Arnim (Tex. Civ. App.) 172 S. W. 184.

The point made with respect to the number indorsed upon the order of sale is based upon the fact that the case upon the docket of the Supreme Court was numbered 2457. It is contended that this is the number which should have been given. In the first place the statute does not require that the number of the suit in which the judgment was rendered be shown by the order of sale. If it be shown we think the trial court number is the one to be given. But, admitting that the numbering of the Supreme Court judgment should have been given, it is of no consequence because the writ clearly shows the judgment upon which it was issued. It was a mere matter of misdescription, in part, which is otherwise correct. We fail to see how it can be said that the names of the parties were incorrectly given.

This disposes of all objections urged against the validity of the order of sale and proceedings thereunder. Being of the opinion that none of them are well taken, title passed and is now vested in appellee. This renders it unnecessary to pass upon other questions presented...