Willis v. Smith

• Decision Date: 26 March 1886
• Citation: 17 S.W. 247
• Parties: WILLIS v. SMITH.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Supreme Court

17 S.W. 247

WILLIS v. SMITH.¹

Supreme Court of Texas.

March 26, 1886.

Appeal from district court, Brazoria county; W. H. BURKHART, Judge.

Action by E. E. Smith against R. S. Willis for a league of land in Brazoria county, and for $17,000 damages for use and occupancy. Verdict for plaintiff for one-sixth of the land, and for an annual rent of $833.33 from August 2, 1881, the date when plaintiff acquired his title. From a judgment on the verdict defendant appeals. Reversed.

The petition alleged that plaintiff's title and defendant's pretended title were deraigned from a common source, B. H. Epperson, deceased; that on August 2, 1881, plaintiff purchased the land at execution sale under a judgment in plaintiff's favor against J. P. Russell and R. B. Epperson, executors of B. H. Epperson, deceased, and A. W. Wright. The petition further alleged that defendant's pretended title to an undivided five-sixths of the land was based on an execution sale made November 1, 1881, after plaintiff acquired his title, under a judgment in favor of E. H. Campbell, plaintiff, and R. S. Willis and Harriet A. McGregor, interveners, against J. P. Russell and R. B. Epperson, as executors of B. H. Epperson, deceased, at which sale defendant became the purchaser. Plaintiff denied that the execution and order of sale were valid, and also alleged that the sale was void because defendant had prevented fair competition. Plaintiff, however, admitted that the judgment in this action was for the unpaid balance of purchase money due from A. W. Wright and B. H. Epperson, deceased, amounting to $21,308.75, and interest thereon, and that plaintiff was willing to redeem from such judgment, and tendered payment of that sum. The petition further alleged that defendant claimed title to the land under a purchase at execution sale of the land made in November, 1881, under a judgment in favor of W. B. Ward against J. P. Russell et al., as executors of B. H. Epperson, deceased; that the sale was made after the accrual of plaintiff's title, and was void; and that the judgment was no lien on the land. Plaintiff also alleged that defendant claimed title to an undivided half of the land under an execution sale on a judgment in favor of Sallie Dickson against J. P. Russell et al., as executors of B. H. Epperson, deceased; that the judgment was rendered by the district court of Marion, county, but that the sale was held in Brazoria county subsequent to the accrual of plaintiff's title; and that more than a year elapsed, before plaintiff's purchase, between the rendition of the judgment and the sale thereunder. As to this title, plaintiff prayed that, if the court should rule that defendant acquired title to a one-half interest in the land under this sale, he be compelled to enforce his right against the undivided five-sixths which he had acquired under the judgment in favor of E. H. Campbell, plaintiff, and R. S. Willis and Harriet N. McGregor, interveners. Plaintiff further alleged that he was not a party to any of these actions or proceedings under which defendant claimed title, and had no actual knowledge of the issuance of the executions or of the various sales until after they occurred. Plaintiff also alleged that defendant claimed a superior title under a trust-deed executed February 20, 1879, by E. S. Epperson, J. P. Russell, and R. B. Epperson, conveying the land to Thomas F. Lawson in trust to secure two notes payable to P. J. Willis & Bro., of which firm defendant R. S. Willis is the surviving partner that defendant purchased the land at the trustee's sale; that the trust-deed was executed to secure the individual indebtedness of E. S. Epperson, J. P. Russell, and R. B. Epperson, and not to secure a debt of the estate of B. H. Epperson, deceased; and that the land was bid in by defendant for $100, when the same was reasonably worth $100,000. Defendant demurred to the petition, on the ground that the right shown by plaintiff in B. H. Epperson's estate was an equitable right to have the various sales under which defendant claimed title set aside, and that such equitable right did not pass to plaintiff under the execution sale under which he claimed title. The demurrer being overruled, defendant answered by plea of not guilty, and by general denial. On the trial, plaintiff's evidence showed that B. H. Epperson and A. W. Wright each acquired an undivided half in the land from E. H. Campbell and others, and that Wright conveyed his interest to B. H. Epperson on July 31, 1878. B. H. Epperson died October 2, 1878, leaving a will, and J. P. Russell and R. B. Epperson were appointed his general executors, and E. S. Epperson special executor. On December 1, 1880, plaintiff obtained a judgment for $1,283.33 against A. W. Wright individually, and J. P. Russell and R. B. Epperson, executors of B. H. Epperson, deceased. Execution was issued June 21, 1881, under which the land was bid in by R. J. Wilson on plaintiff's account for $250, which was credited on the judgment. The sheriff prepared a deed for the land to Alexander Pope, plaintiff's attorney, and delivered it unsigned, together with the execution and a memorandum of his return, to Wilson. On May 5, 1883, Pope quitclaimed all his interest in the land to plaintiff. On the trial, defendant introduced in evidence the various judgments, sheriffs' deeds, etc., under which he claimed title. They were all admitted, except the trust-deed to T. F. Lawson, executed by J. P. Russell, E. S. Epperson, and R. B. Epperson, executors of B. H. Epperson, deceased, which was excluded on the ground that the will did not empower the executors to execute it. A certified copy of the abstract of the judgment in the action of W. B. Ward against J. P. Russell et al., executors of B. H. Epperson, was also excluded by the court, on the ground that the abstract failed to specify the character in which defendants were charged. The following charge was given to the jury: "The title to the land in controversy...