Wife v. Gamble

• Decision Date: 31 December 1846
• Citation: 1 Tex. 124
• Parties: BENNETT AND WIFE v. GAMBLE, ADM'R OF RICHARSON
• Court: Texas Supreme Court

1 Tex. 124

BENNETT AND WIFE

v.GAMBLE, ADM'R OF RICHARSON

Supreme Court of Texas.

December Term, 1846.

Appeal from Victoria County.

An execution which is merely voidable can only be objected to by one of the parties to it; but an execution which is void may be objected to by any person whose interests are affected by it. [Overruled, 10 Tex. 140.]

If an execution issue before the death of one of the parties, it is not abated by the death; but if it be returned not satisfied, and an alias has to be resorted to, the legal representative of the deceased must be made a party; except where a lien has been acquired by the first execution. In that case, the lien may be preserved by the issuance of an alias, etc.

If no lien was acquired under the first execution, or being acquired, was lost, the judgment would have to be revived in the name of the representative.

A lien once acquired will be lost by the want of due diligence to preserve it. Permitting one term of the court to elapse without renewing the execution will not be exercising that diligence which will preserve a lien, and the lien being lost, there will be nothing to support an alias, in the name of the original party. [7 Tex. 269;9 Id. 475.]

The facts of the case are given by Mr. Justice Lipscomb in the opinion.

Howard, for appellant.

1st. It is submitted that under our statute, the amendment asked for should have been allowed.

2d. The refusal of the court to charge that two years' possession, under the sheriff's sale, was a good title under the statute of limitations, was erroneous.

3d. The charge of the court that the title under the sheriff's sale to Bennett was void cannot be sustained. The levy on the slave was good. The sheriff took her into possession, but left her with the defendant in execution until a bond could be executed. The defendant was a mere bailee of the slave. Instead of executing the forthcoming bond, he fraudulently ran the slave off, to avoid the sale. His fraud precludes him or his privies from alleging any illegality in the sale, either from want of appraisement, or the presence of the property on the day of sale. The only party that could have set up this illegality was the plaintiff in the execution, and he waived it by directing that the sale should be made, whether the property was present or not. After the death of the plaintiff in execution, his administrator sues another execution and levies it upon the property in the hands of the innocent purchaser. To tolerate this course would be to encourage a gross fraud. The plaintiff might have proceeded against the sheriff for negligence or have directed a levy on other property, or as he did do, order the property sold whether produced or not; and having chosen the latter course, he cannot be permitted to treat the sale as a nullity; neither can his administrator; especially when no fraud or improper conduct is alleged on the part of the purchaser.

The indorsement of the clerk on the execution states that it was entitled to a credit of $10, and therefore the presumption must be, that the proceeds of the sale were paid to the plaintiff in execution, which would estop him.

The sheriff is the agent of both parties, appointed by law; and when the rights of third parties do not interfere, they may control his action. In this case, as the fraud of the defendant put it out of his power to dissent, the agreement of the plaintiff to the sale was sufficient.

It should be observed that the execution law of 1840 does not require the property to be present when sold.

4th. The absence of the property would not render the sale a nullity, if there had been no consent. If the property brought less on that account, the remedy was against the officer.

There is no proof that the slave did not bring her value, and the court cannot presume it. The price was perhaps low for a sound slave, six years old; but the court has no evidence that she was sound or worth any more. There is, therefore, no proof of damage arising from the conduct of the sale. So the sale would be good without notice; 1 Nott & McC. 12;4 Wheat. 503; 16 J. R. 537; 8 Id 366; 8 Cow. 182; and 5 Yerg. 215. It would also be good without appraisement, especially when it had been prevented by the fraud of the defendant in execution. It does not appear that there was no appraisement, and if it was necessary, it will be presumed in favor of the regularity of the proceedings of the officer. If the claim on which the judgment was had originated before the appraisement law, as must have been the case, then according to the recent decisions of the United States supreme court, no appraisement was necessary.

The sheriff's deed is evidence per se of regularity, 20 J. R. 49; 7 Wend. 83;1 Cow. 481;7 Id. 747, and must hold as to the appraisement.

5th. The motion to quash the second execution ought to have been sustained. Process cannot be prosecuted in the name of a dead man. It was not competent evidence to support a levy, and ought to have been ruled out.

Robinson and Fischer, on the same side, for appellant.

Bennett was an innocent purchaser, and the sale to him cannot be rescinded, unless the purchase money and all damages be refunded. 4 La. Cond. 213; 2 Id. 247;10 Pet. 476.

Lynam, the defendant in execution, is the only person that could question the validity of the sale by the sheriff. Fonbl. Eq. 668.

The court erred in deciding that the statute of limitations did not apply. 4 Laws, 163; 4 La. Cond. 280; 2 Id. 20, 460, 496;3 Little, 136;5 Wend. 20;6 Id. 475;20 Johns. 40.

Bennett is not a trespasser. Two years possession without force or fraud gives a right. 1 La. Cond. 362; 5 Martin, 221; 11 Wheat. 361; 6 Pet. Cond. 350-351.

J. Webb, for appellee.

The principal question arises upon the validity of the sale made by the deputy sheriff in 1840, for it is under that sale alone, that the appellants set up title to the property.

The judgment of Richardson v. Lynam et al. is admitted by all parties to be valid. The levy under the execution was legally made upon the property of Lynam, and it is only the disposition of that levy that is called in question.

The appellee contends that the sale did not transfer the property. It was made in violation of the prohibitions of the statute and was therefore incapable of forming the basis of any legal act.

The act of February 5, 1840, p. 93, was the only law governing sales under execution, in force at the time of this sale. The 15th section of that act requires that the property shall be appraised on the day of sale. “The assessment must be reduced to writing, signed by the appraisers or a majority of them, and be returned with the execution.” The 16th section provides that ““improved lands or slaves must bring two-thirds of the appraised value, or no sale shall be made for cash.”

The record shows there was no appraisement of the property -- it is not an inference derived from the absence of an appraisement; it is positively proved by the deputy sheriff who made the sale, and it was within the knowledge of the purchasers.

It is a rule of law that a statute title must show that everything which the law deems essential to the transfer of the property was done and it must appear on the record to have been done.14 Mass. 20, 29;2 Mason, 71. In this case it is affirmatively shown that the requirements of the statute were not complied with. The appellants introduced the return of the deputy sheriff on the execution as a muniment of title, and that return shows a gross violation of the provisions and requirements of the statute.

The sale of “improved lands and slaves” not being according to the course of common law, the statute authorizing it must be strictly pursued or the sale is void. 17 Mass. 243;14 Johns. 353.

The sheriff had no authority under the law to sell the property for less than two-thirds of its appraised value for cash, and a sale made without authority conveys no right or title to the purchaser. The purchaser is bound to know the law. 7 Johns. 536;9 Pet. 243.

The sale of the property when it was not in view of the bidder was fraud in law and passed nothing to the purchaser. 14 Johns. 351;17 Id. 116, 121.

The original levy vested the property in the sheriff, as the agent of both creditor and debtor, and the illegal or pretended sale, being incompetent to divest it to the injury of the creditor, it remained in contemplation of law, in the sheriff. The possession of Bennett was, in law, the possession of the sheriff, because the fraudulent abduction by the creditor, and the acquisition of possession by Bennett under that abduction could not divest the sheriff of his right of possession, as the agent of the creditor. When he received the alias execution, therefore, it was his duty to take the property and sell it. The second execution in its legal effect was nothing more than a venditioni exponas, to complete what had been commenced under the first.

2d. There was no error in the court refusing to permit the plaintiffs to amend their petition, by alleging the statute of limitations in support of their title, after both parties had announced themselves ready for trial. The 4th section of the act “amending the judiciary laws of the republic,” Acts 2d Con. p. 95, declares, “ that no amendment shall be permitted in any pleadings or other proceedings in any cause after issue joined, except,” etc. The 12th section of the act of February 5, 1840, “to regulate proceedings in civil suits,” vol. 4, p. 89, does not conflict with or alter this provision of the law. It authorizes amendments under the direction of the court, but not in violation of law.

Besides, the permitting of amendments is a matter entirely within the discretion of the court, not only under our statute, but upon general principles of law, and a refusal to permit an amendment cannot be assigned as error. 5 Cranch, 15;6 Id. 253;9 Wheat. 576;11 Id. 280.

3d. Nor was there error in the court's refusal to quash the execution. The pleadings...