Wilson v. Smith

• Decision Date: 01 January 1878
• Parties: SARAH J. WILSON ET AL. v. COLEMAN SMITH ET AL.
• Court: Texas Supreme Court

50 Tex. 365

SARAH J. WILSON ET AL.

v.COLEMAN SMITH ET AL.

Supreme Court of Texas.

1878.

APPEAL from Red River. Tried below before the Hon. Joseph Bledsoe.

Coleman Smith and others, heirs of James Bankston, brought an action of trespass to try title against Sarah J. Wilson and others for a tract of land described, substantially, as the unsold balance of a tract of twelve hundred acres, and reserving also a homestead of two hundred acres.

The defendants pleaded not guilty, and on the trial defendants showed in evidence two judgments against James Bankston, executions thereon, and levy and sale.

The description of the land given in the levy and in the sheriff's deed was vague. The description is given in the opinion. The defendant in execution was present at the execution sale, assented to it, having pointed out the land to the sheriff, and possession was taken under the sale and was kept up to the suit. Bankston was insolvent at the time of sale.

Judgment was rendered for the plaintiffs, and defendants appealed. The questions discussed raise the sufficiency of the description in the levy and sheriff's deed, the effect of the waiver by the defendant in execution, &c.

Sims & Wootten, for appellants.

I. The judgment of the court is contrary to the law and the evidence, and is not supported by either. The land is not sufficiently described in the petition to justify the rendition of a judgment for its recovery. [The description is given in the opinion.]

II. If the land is sufficiently described to render it certain what land is sued for, then it has been so rendered certain in this proceeding, and the appellants were entitled to a judgment for the same upon their legal and equitable title disclosed in the progress of the trial, and to the same land. (Rorer on Judicial Sales, arts. 896-898; Hackworth v. Zollars, 30 Iowa, 435-438; Glenn v. Malone, 4 Iowa, 314-320; Dygert v. Pletts, 25 Wend., 402.)

As to the equity power of the court in actions of this sort, see Viser v. Rice, 33 Tex., 154;Miller v. Alexander, 8 Tex., 43;Kinney v. Vinson, 32 Tex., 127;Herrington v. Williams, 31 Tex., 464;Neill v. Keese, 5 Tex., 23;Easterling v. Blythe, 7 Tex., 210;Peevy v. Hurt, 32 Tex., 153.

III. The land is described in substantially the same way in appellees' pleadings and in the sheriff's deed to appellants. (Howard v. North, 5 Tex., 312.)

IV. The defendants proved a regular legal and equitable title to the land in controversy. (Leland v. Wilson, 34 Tex., 91, 92.)

V. The judgment debtor pointed out the land to be levied on, and was present and assented to the sale, and at the time was insolvent. This was shown by the testimony of W. B. Wright. (Alexander v. Miller, 18 Tex., 897, 898;Mackey v. Wallace, 26 Tex., 529;Willis v. Matthews, 46 Tex., 481-484.)

GOULD, ASSOCIATE JUSTICE.

Appellees, the heirs of James Bankston, brought this action of trespass to try title, and in their original petition they describe the land sued for by giving the field-notes of a survey “containing twelve hundred acres,” and then proceeding thus: “Reserving all land sold from this survey by James Bankston previous to the 21st of September, 1866, and also reserving from said survey two hundred acres as a homestead, leaving a remainder of one hundred and sixty acres, more or less.” The defendants claimed as purchasers at a sheriff's sale in September, 1869, under a judgment of the District Court of the county where the land is situated, of date September 21, 1866, also under a judgment of the County Court of date June 2, 1866, the sheriff's deed describing the land sold substantially as in plaintiffs' petition, only that the field-notes of the survey given are said to contain twelve hundred and eighty acres. The judgments, the executions, the sale thereunder, and the sheriff's deed all appear to be regular, unless the levy and deed are invalid because of insufficient description of the land sold. The levy was on “one hundred and sixty acres of land, being a part of the homestead tract of said James Bankston, exclusive of two hundred acres exempt by law.”

On the trial, it appeared that James Bankston, previous to the judgments under which the sale was had, had sold off all of the original survey of “about twelve hundred acres,” except a homestead tract of three hundred and fifty or three hundred and sixty acres. After his death the homestead was run off. The defendants occupied the remainder, of one hundred and fifty or one hundred and sixty acres. It was in evidence that James Bankston pointed out the excess of his homestead tract over two hundred acres for levy, and, further, that he was present at and assented to the sale, and it appears that the purchaser took and held possession. This was substantially the evidence. The plaintiffs' pleadings were amended so as to allege “that the land claimed by the defendant, and of which the defendant has possession, is about one hundred and fifty acres off of the south end of the tract described in plaintiffs' petition, commencing at the southwest corner of Coleman Smith's subdivision of said tract and running due east to Kickapoo creek, and including all of the land of said tract lying south of said line.” A jury was waived, and the court rendered judgment for plaintiffs for one hundred and fifty acres off of the south end of the James Bankston headright of twelve hundred acres, ...