Webb v. Mallard

• Decision Date: 01 January 1863
• Citation: 27 Tex. 80
• Parties: W. D. WEBB v. MELISSA A. MALLARD.
• Court: Texas Supreme Court

27 Tex. 80

W. D. WEBB

v.MELISSA A. MALLARD.

Supreme Court of Texas.

1863.

The question whether an execution is voidable or void, when the defendant dies after the rendition of the judgment, but before the issuance of the execution, discussed and authorities cited.

NOTE.--A sale of property under execution, after the death of the defendant, is only relatively void. Such sale may be avoided by any party having an interest in the property, if he should seek to do so in the proper time and manner. It cannot be set aside where there has not been and cannot be an administration upon the estate, in a collateral proceeding, upon grounds going to the validity of the judgment, rather than of the execution. (Taylor v. Snow, 47 Tex., 462.)

The correctness of the ruling in Conkrite v. Hart & Co., 10 Tex., 140, questioned,--where it was held that a sale under an execution issued in the lifetime of the debtor, but levied after his death, was a nullity.

If it be admitted that the validity of an execution so issued can be questioned in a trial of the right of property, it is error to confine the inquiry of the jury to the issue of the validity of the execution by virtue of which the property was levied upon. In such a case the issue of the right of property should also be submitted.

If the husband and wife have been sued on a note, and for the foreclosure of a mortgage of certain property executed by them to secure the note sued on, and judgment on note and decree of foreclosure be rendered against the husband alone, the wife is concluded by such proceedings, and she cannot set up a claim to the same property levied on by virtue of an order of sale, issued in pursuance of the decree of foreclosure.

ERROR from Henderson. Tried below before the Hon. R. A. Reeves.

William D. Webb, the appellant, instituted a suit in the district court of Henderson county against A. F. Mallard and Melissa A. Mallard, his wife, to recover the amount due on a promissory note jointly executed by them, and for the foreclosure of a mortgage on a negro woman named Ellen, jointly given to secure the payment of the note sued on. On the 13th day of May, 1859, he obtained a judgment on the note and a decree of foreclosure against A. F. Mallard. On the 6th day of September, 1859, an order of sale of the same negro was issued to the sheriff of Henderson county, under which she was levied on. On the 23d day of September, 1859, Melissa A. Mallard made oath that the said negro was her separate property, and executed bond for the trial of the right of property. Issues were made up under the directions of the court--Webb alleging that the negro was subject to be sold under said order; Mrs. Mallard denying that allegation, and averring that the order of sale was issued long after the death of A. F. Mallard, one of the defendants in execution; that his estate had been administered upon; that the administration was still open; that plaintiff in execution had never presented said judgment nor any claim to the administrator of A. F. Mallard.

On the trial the claimant introduced evidence tending to show that the negro Ellen was her separate property, and proved that A. F. Mallard died on the 18th day of May, 1859. The plaintiff read in evidence the proceedings had in the district court of Henderson county, in which he recovered the judgment against A. F. Mallard, and the decree of foreclosure on the negro Ellen.

The court charged the jury: “If you believe, from the evidence, that A. F. Mallard died after the judgment was rendered against him, and before the order of sale was issued by the clerk, it could not be enforced by a sale of the negro in this proceeding, and you should find for the claimant, Mrs. Mallard; and if this be your verdict, it would not be necessary to inquire into the other points of the case.”

Verdict and judgment for plaintiff, and Webb sued out his writ of error.

Thomas B. Greenwood, for plaintiff in error.--The plaintiff in error had a clear right to sell the negro in controversy under the order of sale. It is submitted that the case of Givens v. Davenport, 8 Tex., 441, is decisive of the case.

Donley & Anderson, for defendant in error.--The first question that we present is, can this action be maintained if the order of sale was issued and levied after the death of A. F. Mallard? If issued after his death, we contend that it is a nullity; that the levy was wholly unauthorized; that the proceeding was void, and cannot form the basis or ground for an action or trial of the right of property. (Hartley's Dig., art. 2814; Martin v. Commonwealth, 1 Mass., 347;Lawrence v. Smith, 5 Mass., 362; Green v. Mangum, 3 Murphy, 59; Capron v. Van Norden, 2 Cranch, 126; Ketland v. Cassius, 2 Dallas, 368.) In cases of the trial of the right of property under article 2053 (O. & W. Dig.), there must be a levy by virtue of a valid and legal writ of execution, sequestration or attachment. We submit that in this case the defendant having died before the writ was issued, that it was void, and the levy under it cannot form the ground or basis to support this action. A sale made under an execution issued in the lifetime of the debtor, but not levied until after his death, is void. (Conkrite v. Hart & Co., 10 Tex., 140; see Kitchen v. Crawford, 13 Tex., 516.) The order of sale was issued after the death of A. F. Mallard. The order was a nullity, and the action had under it cannot form the basis for this action. The next question that presents itself, “Is Mrs. Mallard concluded by the judgments?” We think that she is not. In all the cases referred to there were judgments upon the verdict adjudicating and settling the right or question involved in the suit. In this case there is, in fact, neither verdict nor judgment. There is no verdict as far as Mrs. Mallard is concerned, but if the verdict could be held as including and binding Mrs. Mallard, yet the verdict was not followed by the judgment of the court divesting her right to the negro, and we think that this must be done before she can be concluded or affected by the court. It was held by this court in the case of Fowler & Clepper v. Stoneum, 6 Tex., 61, that “the better opinion would seem to be that, without judgment, the verdict is not evidence of the facts found by it.” (See Blanchet v. Davis, 10 Tex., 158.) In 2 Bibb, 57, it was held that a verdict without judgment is not evidence. We submit that the right of Mrs. Mallard was not determined or passed upon in the case of W. D. Webb v. A. F. Mallard and Melissa A. Mallard, so as to preclude her from asserting her right to the property. (Tadlock v. Eccles, 20 Tex., 782;Baxter v. Dear, 24 Tex., 17;Lee v. Kingsbury, 13 Tex., 69.)

MOORE, J.

The jury were instructed by the court that if A. F. Mallard, the defendant in execution, died after the judgment was rendered against him, and before the order of sale was issued by the clerk, it could not be enforced by a sale of the negro in this proceeding, and if such was the fact, that they should find for the claimant, and that it would be unnecessary for them to inquire into the other points of the case. The decisions of the different American courts as to the effect of the death of the defendant in execution, previous to its being issued, seem to be quite conflicting. In Missouri, Massachusetts and Pennsylvania, it has, in repeated decisions in which the question was directly before court, been held that an execution issued after the death of the defendant was irregular and voidable, but not, in the proper sense of the word, void. (See Hamilton v. Lyman, 9 Mass., 15;Bowdoin v. Jordan, 9 Id., 160;Darlington v. Speakman, 9 Watts & Serg., 182;Day v. Sharp, 4 Whart., 339; and especially the elaborate and well-considered case...