Wife v. North

• Decision Date: 31 December 1849
• Citation: 5 Tex. 290
• Parties: HOWARD AND WIFE v. NORTH.
• Court: Texas Supreme Court

5 Tex. 290

HOWARD AND WIFE

v.NORTH.

Supreme Court of Texas.

December Term, 1849.

The acts of femes covert in pais may be and frequently are void; yet this does not impair the conclusive force of judgments to which they are parties; and if these be not reversed on error or appeal, their effects cannot be gainsaid when they are enforced by ultimate process, or when they are brought to bear in any future controversy. (Note 54.)

The principles of the common law, especially when unmodified by equity, furnish no rule for the determination of the quantity or quality of the interest of the husband in the separate property of the wife as fixed by law in this State. He has the management of the wife's estate and the incidents essential to the due exercise of such authority, not for his own benefit, but for that of the community or of the estate which he controls.

Where judgment is recovered against husband and wife jointly, without any specific direction as to the estate out of which it is to be satisfied, it would seem that, as a general rule, it may be levied upon and be satisfied out of the property of either the husband or wife or of the community.

It seems that the separate property of the wife is liable to respond in damages for the frauds in which which she participates in relation to her own property and which inure to her exclusive benefit. (Note 55.)

Exceptions to the admissibility of evidence will be considered, if they appear from the statement of facts, without the necessity of a more formal bill of exceptions.

The act concerning executions does not direct the manner in which the return of the officer shall be made, nor what facts shall be stated, nor does it impose upon the purchaser the duty of proving by the return or by parol that the officer has not deviated from the mode prescribed by law for the execution of his duty.

The purchaser at an execution sale is not bound by nor is his purchase 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; but a clear distinction is recognized to exist between a sale without authority and one where there is authority not strictly pursued. In the former case the sale is void; in the latter the title will pass, and the party injured by the irregularities will be left to his remedy against the officer. (Note 56.)

Objections to the admissibility of evidence which have not been taken in the court below are not entitled to consideration.

It is not necessary for the sheriff to sign his name to the indorsement of a levy when it is made. It is sufficient if he sign his return, of which the levy constitutes a part. (Note 57.)

It may be regarded as a settled rule that a defective notice or want of publication of the sale of property under execution will not vitiate the title of a purchaser in good faith.

A failure of the sheriff or other officer to sell lands or slaves at the court-house door of the county or on the first Tuesday of the month is not a mere irregularity which will not vitiate the sale. The officer has no authority to sell at any other time or place; but the presumption is in favor of the title; and where the return does not state the contrary, the presumption is that the sale was made at the proper time and place. (Note 58.)

It is not necessary that either the judgment or the execution should be recited in a sheriff's deed; and if there be an attempt to recite them, no mistake or misrecital will impair the legal validity of the deed. (Note 59.)

Where the description of land in a deed is so indefinite that the land cannot be identified with certainty, the deed is void; but where the objection was to a sheriff's deed in an action by the debtor to recover the land, it was held to be a sufficient answer to the objection of vagueness that the description in the deed corresponded substantially with the description of the same land contained in the plaintiff's petition.

A mistake of the sheriff or other officer in the computation of the amount to be collected upon an execution cannot affect the title of a purchaser at the sale. And where the mistake was unimportant, it was held not to affect the title, although the judgment creditor was the purchaser.

Where a tract of land containing a quarter of a league was levied on under the act of 1842, and appraised at one dollar per acre, and only ten hundred and thirty acres were sold at sixty-six and two-thirds cents per acre, that being sufficient to satisfy the execution: Held, That the sale was void. (Note 60.)

Under the act of 1842 the sheriff or other officer has no authority to sell less than the whole of a tract of land levied on and appraised. If he should do so it would not be a mere irregularity, but would be an exceeding of his authority which would vitiate the sale.

Where an execution sale under a valid judgment is void, and the debtor brings suit to recover the property, if there be no fraud on the part of the purchaser the latter will not be compelled to restore the property without being reimbursed the amount which he paid, and which went to discharge the judgment.

It seems that the purchaser of property sold under execution has a right in equity when the property is recovered from him or his vendee, by virtue of a superior title, to be substituted for the creditor, and to have the amount of his purchase-money refunded to him by the defendant in the execution. (Note 61.)

Quere, where a judgment is satisfied by the proceeds of a sale under execution, and the sale is afterwards declared void on account of a defect subsequent to the levy, whether the lien of the execution and levy is extinguished, or may be revived by quashing the return, sale, &c.

Error from De Witt. Suit by the appellants for the recovery of a tract of land claimed to be the separate property of the wife. The title of the wife originally was admitted, and the point to be determined was whether the title had passed out of the wife into the appellee. The land formed a portion of one-half of a league, one quarter of which had been sold by the appellants to the appellee. The latter, alleging that he had been injured in the said sale by the fraudulent representations of the appellants, had instituted suit against them and recovered judgment. Execution having been issued on said judgment and levied on the remaining quarter of the said half league, the land was appraised at one dollar per acre, and ten hundred and thirty acres, enough to discharge the execution, at two-thirds of the appraised value, were sold, the appellee being the purchaser.

A jury was waived and the court gave judgment for the defendant.

There were no bills of exceptions, but the objections to testimony were contained in the statement of facts, as follows: “For the defendant, proof was offered of the transcript of a record from Gonzales District Court of a case in which Isham R. North was plaintiff and Philip Howard and wife were defendants, showing a judgment in favor of plaintiff against defendants for $633.33 1/3 on the 18th March, 1845; also a copy of an execution and sheriff's return issued May 5, 1845, and returned June 3, 1845, by which one thousand and thirty acres of said lower quarter league were sold to said North; to the introduction of which plaintiff, by attorney, excepted so far as to the levy and appraisement and sale of a portion of the land appraised, as well as to the amount of the product of the sale; all of which exceptions were overruled by the court. The defendant offered in evidence a deed from the sheriff of Gonzales county, dated June 3, 1845, for said land, to the introduction of which plaintiffs excepted, as it did not purport to be founded upon the execution offered by the proper date of testation; also because of the vagueness in description of the premises by blanks, apparent on the face thereof, and because it did not convey the land as levied on or appraised, but a part thereof, including the whole of the river front, as well as to the proof and execution of the deed; all of which were overruled by the court. The defendant there rested his case. Plaintiffs, by attorney, then excepted to the evidence, inasmuch as there was no proof of a sale being had at any particular place, or upon the day required by law, or by virtue of notice by publication, and as there was no return of interest or costs upon the execution to justify a sale of the quantity of land, either by the appraisement or otherwise; all which objections the court overruled,” &c. On the execution was indorsed an order from the clerk for sale without appraisement for costs, and with appraisement for the principal and interest. The sheriff returns that he levied on one quarter of a league of land on Cuero, the lower quarter of George W. Davis's league. The defendant appeared and appointed Charles Howard on his part to appraise the above-described land. The plaintiff not appearing, the sheriff appointed A. H. Jones on behalf of plaintiff. The land was appraised at one dollar per acre. The sheriff then certifies that he offered the above-described land, or so much as would satisfy debt, interest, and costs, amounting to six hundred and eighty-six dollars and seventy-one cents; the above-described lands having been purchased by I. R. North. He, being the highest bidder, bid the amount of six hundred and eighty-six dollars, it being the amount of debt, interest, and costs. June 3, 1845.

Neill, for plaintiffs in error.

I. The land was the separate property of Mrs. Howard, and therefore a judgment against Howard alone or Howard and wife could not divest her of the title. (Davis v. Foy, 7 S. & M. R., 64;Berry v. Bland, Id., 77;Frost & Co. v. Doyle et ux., Id., 68;James v. Fisk, 9 Id., 152;McClanahan v. Porter, 10 Mo. R., 746; Scott v. Purcell et al., 7 Blkfd. R., 66; Cox et al. v. Wells, Id., 410; Durmford v. Gross et ux., 1 Con. La. R., 590; Lawes et al....