Townsend v. Smith

• Decision Date: 01 January 1857
• Citation: 20 Tex. 465
• Parties: NATHANIEL TOWNSEND v. MORGAN L. SMITH.
• Court: Texas Supreme Court

20 Tex. 465

NATHANIEL TOWNSEND

v.MORGAN L. SMITH.

Supreme Court of Texas.

1857.

This being, in effect, an action of debt on a judgment, and not a proceeding, by scire facias, to revive, the suit was rightly brought in the county of defendant's residence.

A levy upon land is not a satisfaction of the judgment.

Nor does the sale and purchase of the land by the judgment creditor, operate a satisfaction of the judgment, if by reason of any substantial defects in the execution or proceedings thereon, no title passed to the purchaser; in such case the judgment remains in force (as between the parties) unaffected by anything done under the execution.

Where land was sold under execution, and purchased by the judgment creditor, and the execution returned satisfied, and the judgment debtor sued for and recovered the land in the United States district court, because of a defect in the levy and sale, it was held that the judgment creditor could sustain an action on the judgment in the county where the defendant resided, other than that in which the judgment was obtained, and that he was not put to a motion in the latter county to set aside the satisfaction of the execution, as his only remedy. 25 Tex. S. 430.

A judgment which does not express the rate of interest which it shall bear, bears interest at eight per cent. only, notwithstanding the cause of action bore interest at ten per cent.

Appeal from Travis. Tried below before the Hon. Thomas H. DuVal.

At the fall term of Fort Bend district court, 1845, commencing on the 29th day of September, Morgan L. Smith recovered a judgment against Nathaniel Townsend, in Fort Bend district court, for $879.45, and against Robert Peebles, garnishee in said suit, for $150 with interest on the latter from 15th February, 1836, at five per cent. per annum until paid. The notes on which the principal judgment was obtained bore interest at ten per cent. The exact date of the judgment did not appear. On the 23d February, 1846, a fi. fa. was issued against Peebles, garnishee, and on the 26th March thereafter was “returned by order of plaintiff.” On the first day of May, 1848, a pluries fi. fa. was issued to the sheriff of Matagorda county, against said Townsend; and there being no sheriff of said county, said execution was received by the coroner and levied on the undivided half of a certain half league of land, on old Caney creek, being league No. 28, originally granted to Freeman Pettus; returned not sold for want of time. August 22d, 1848, a venditioni exponas was issued to sell said land; and October 3d, 1848, returned the said land appraised at $1.50 per acre, and sold to “R. J. Townes, the attorney of the plaintiff, at $1 per acre, amounting to $1,111, from which deduct $40.36, the amount of costs, leaving $1,070.64 to be appropriated towards the payment of the principal, for which amount I hold the receipt of R. J. Townes, he being the attorney for the plaintiff.”

On the 29th of October, 1850, Townsend, as a citizen of Louisiana, brought suit in the United States district court, at Galveston, in the form of an action of trespass to try title, to recover of said Smith the one-half of the said Freeman Pettus' league of land, alleging that said Smith claimed the same by virtue of some pretended, illegal and void sheriff's sale of the same. On the 10th December, 1850, there was a judgment by default. On the 16th of same month, an agreement signed by the attorneys of the parties was filed, to the effect that Smith admitted the title of Townsend as alleged, and that he Smith claimed title to said land by virtue of a sheriff's sale on execution against said Townsend; and same day the default was set aside. Afterwards Smith filed an answer of not guilty. There was another agreement in this record, to the effect that the judgment against Peebles, garnishee, had been paid in cotton to Smith at Columbia before the issuance of the execution to Matagorda county, the attorney who directed such execution not being aware of the fact. May 31st, 1851, there was a trial by jury, and verdict and judgment for plaintiff. Defendant moved for a new trial on the ground that the court had instructed the jury that the sale of the premises in question, under the judgment and execution against Townsend was void in consequence of the uncertainty in the description of land levied on and advertised and sold. Motion overruled.

On the 15th of September, 1855, Smith brought this suit against Townsend, in Travis district court, on the judgment previously recovered by him in Fort Bend, and alleged the facts apparent from the foregoing statement, making transcripts of the proceedings in both said cases exhibits, and claiming interest on said judgment “which plaintiff avers should have been at the rate of ten per centum per annum, but which, through a clerical mistake, was not entered on said original judgment.” Plaintiff also alleged that the judgment in the United States district court was rendered against him by reason of the strictly common law jurisdiction of said United States court, whereby he was prevented from setting up his equities herein before set forth.

Defendant filed a general demurrer, and for special cause assigned that it appeared from the petition that the judgment sued on was satisfied; general denial and plea of payment. Afterwards defendant filed an amendment, objecting that this was not an original suit, but a proceeding to revive a judgment, and should have been commenced in Fort Bend county, where the judgment was rendered.

That plaintiff procured the sale and purchase of the property in Matagorda county, with a full knowledge of all the defects in the said judgment, and all the subsequent proceedings had thereon; that he was fully apprised of the character of the title he was getting; consequently said judgment was discharged, and plaintiff is not entitled to recover the amount which he gave for said property, or any part thereof.

That if plaintiff ever had any right to have his said judgment altered or corrected, so as to draw ten per cent. interest, which is denied, said right occurred more than two years next before the commencement of this suit, and more than four years before the commencement of this suit, and wherefore said right, if it ever existed, is barred by limitation. Same objection as to the right to have the return of satisfaction on the execution set aside. Also that if plaintiff ever had any right of action, or to any legal proceedings for or on account of his losing the title to the land which he purchased at sheriff's sale, and having caused his said judgment to be satisfied in full, which is denied, then defendant says that it was by filing his petition in the district court of Fort Bend county, to have the entry of satisfaction on the said venditioni exponas set aside, and the said judgment revived; and this court has no jurisdiction of said cause.

The court overruled all defendant's defenses except the plea of payment; and the case was submitted to the...