W. B. Coffee v. Silvan
| Decision Date | 01 January 1855 |
| Citation | 15 Tex. 354 |
| Parties | W. B. COFFEE v. NATHAN SILVAN. |
| Court | Texas Supreme Court |
It is competent for a person to appoint an attorney with capacity “to sue and be sued,” and service on such attorney will have the same effect as service on the principal.
The title of the purchaser holding under the sheriff's deed not only does not rest upon the entry of the levy, or the return upon the execution, but, under our statute, it is not affected by any mere want of certainty in the return of the officer. All the purchaser was bound to show was a valid judgment, execution and sheriff's deed; and though the entry of the levy and return appearing upon the execution may have been defective, it is but an irregularity of the officer, which will not defeat the title of a purchaser who is without fault.
Where the levy was on “nine lots in the town of Lockhart,” it was held that the uncertainty did not vitiate the sale.
Appeal from Caldwell. This suit was for lots in the town of Lockhart, which had been sold at sheriff sale, under execution from a justice's court, against the appellee, and which had been bought by appellant and others under whom he claimed. The appellee was plaintiff below. A jury was waived. The power of attorney from Silvan read thus: “For me and in my name to sell and convey, rent or lease all real estate belonging to me in aforesaid county, which will appear by the records of said county; also to sue and be sued, plead and be impleaded, collect debts, pay demands and receipt for the same, hereby ratifying whatever my said attorney shall lawfully do in the premises.”
The return on the execution was,
There was no evidence as to the terms of the advertisement. The deed recited a levy on the lots, describing them particularly, and stating that they were the same levied on by virtue of the execution recited, on the day of the date of the levy indorsed, and that they were duly advertised.
Hamilton & Walton, for appellant. Can service be perfected through an attorney in fact so as to authorize judgment? Power may be delegated by letter of attorney to confess judgment. (Story on Agency, chap. 2, sec. 6; 2 Bacon's Abr. p. 30, Baron and Feme.)
The authority, by letter or attorney, to sue and be sued, is of ancient date and well settled.
The execution was authority to the sheriff to sell, and if property of the appellee, subject to the writ, was sold in the mode prescribed by law, after legal advertisement, the sale would not be illegal if no levy were indorsed on the execution. That the sale in this case was regular is sufficiently proved by the recitals in the deeds; the legality of the advertisement is thus prima facie proved; and if it were necessary to establish the fact by affirmative proof, that the lots in question were a part of the nine mentioned in the levy, the evidence contained in the recitals of the deeds are sufficient for this purpose, for they are therein referred to by number and block as being levied on by virtue of the execution upon which the levy is indorsed, and on the day of the date of said levy. The return of sale as indorsed on the writ would satisfy any doubt as to what particular property was the subject of levy, and the question of levy is but a question of fact.
As to the recitals in the deeds of advertisement being prima facie proof, see 3 Yerger, 308;7 Id. 428;6 Humph. 259;10 S. & M. 246;2 Murph. 364;3 Humph. 76.
The sale would be valid without any indorsement of levy of execution appearing on the writ. A purchaser at sheriff's sale is not bound to show any levy; all that can be required of him is a judgment, execution and deed. (7 Iredell, 151.) A sheriff's deed cannot be avoided collaterally for defect in the levy. (2 McLean, 59.)
Our statute does not require any description of property in the indorsement of levy on the writ; nor in fact any indorsement of levy; and if the latter were required, it seems that it would not be bad, because it did not recite all that the statute requires, for this is true of a sheriff's deed that fails to recite all that may required by the statute.
And a mere variance between the levy and execution will not invalidate. Nor will a mere variance between the levy and sheriff's deed.
The sale was, upon the principles stated, and supported by authority, regular and valid. But if irregular, could not be collaterally attacked and set aside for such irregularity. (2 McLean, 59.)
F. W. Chandler, for appellee. Our statute prescribes the only mode in which legal service can be perfected upon a defendant in a magistrate's court; one is by serving the defendant with a copy of the summons five days before court, and the other is by publication. (See Hart. Dig. p. 527, arts. 1718, 1719 and 1720.)
That the levy made by the sheriff is void there can be no doubt, and the most expansive rule laid down in the books will not shield it from that objection. It is laid down as a universal rule, that a levy must be sufficiently descriptive of the property to be sold to enable the purchaser to ascertain its nature and value, else sacrifice must result to the debtor or purchaser.
The cases cited by the appellant are not in point.
The questions presented by the record which require notice are, 1st. Whether the service upon the attorney was authorized and therefore sufficient to give the court jurisdiction? 2d. Whether the title of the purchaser at the sheriff's sale is void by reason of the want of certainty in the entries and return upon the execution?
Whether the service upon the attorney was authorized and obligatory upon his principal depends upon the question whether it is competent for a party to constitute an attorney with the capacity “to be sued,” or to be served with process in his place and stead. And we think it is. If one can authorize another to accept service, or even to waive process and appear and confess judgment for him, it is not perceived why he may not equally authorize him to be served with process; or substitute him, in his stead “to be sued” as well as to sue. The jurisdiction of the court having attached by the service of process upon the attorney of the defendant, could not be defeated by his refusing afterwards to act under his power of attorney.
Upon the remaining question, as to the effect upon the title of the purchaser, of the want of certainty in the entry of the levy and return upon the execution, there is a diversity of decisions in the several states, occasioned, doubtless, mainly by the difference in their statutory provisions and regulations upon the subject. In the case of Howard v. North (5 Tex. 290), the decisions of several of the states upon this subject were examined; and the conclusion was adopted that the title of a purchaser at a sheriff's sale is not affected by irregularities of the officer committed in making the sale, where such irregularities have taken place, without the concurrence or participation of the purchaser. It was laid down as the settled rule, upon the authority of adjudged cases, under statutes similar to our own, that even a defective notice or want of publication of the sale of property under execution will not vitiate the title of the purchaser. It was observed that the statute does not direct in what manner the return of the officer shall be made, or what facts shall be stated in it; and that the levy...
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Smith v. Olson
...an irregularity, and will not affect the judgment of the lower court on collateral attack. The sale was voidable, and not void. Coffee v. Silvan, 15 Tex. 354; Fitch v. Boyer, 51 Tex. 336; King v. Duke (Tex. Civ. App.) 31 S. W. 335; Ayres v. Duprey, 27 Tex. 593; Owen v. City of Navasota, 44 ......
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Hendron v. Yount-Lee Oil Co., 5320.
...Tex. 107, 2 S.W. 452; Griggs v. Montgomery, Tex.Civ.App., 22 S.W.2d 688. The reasons for this rule are fully discussed in Coffee v. Silvan, 15 Tex. 354, 65 Am.Dec. 169. The foregoing rule was reaffirmed in Houston Oil Co. v. Randolph, 251 S.W. 794, 28 A.L.R. 926, in an opinion by the Commis......
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...to pass good title at the execution sale. The authorities in support of these statements are numerous, but see: Coffee v. Silvan, 15 Tex. 354, 65 Am.Dec. 169; Willis v. Smith, 66 Tex. 31, 17 S.W. 247; Holmes v. Buckner, 67 Tex. 107, 2 S.W. 452; Houston Oil Co. of Texas v. Randolph, Tex.Com.......
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Rodriguez v. Priest
...cannot be affected by a failure of the officer to enter on the execution a proper return showing that a levy was made. Coffee v. Silvan, 15 Tex. 354, 65 Am. Dec. 169; Riddle v. Bush, 27 Tex. 675; Cavanaugh v. Peterson, 47 Tex. It follows that the only title that plaintiffs in error, except ......