Brown v. Renfro, Case No. 5128

Case No. 5128 | Tex. | Feb 6, 1885

Watts, J. Com. App.

It may be conceded that the pending suit to vacate the judgment rendered in 1871 was notice to Campbell and all others who might deal with the property that appellant was asserting a claim to it. This, however, was defensive matter that might have been set up and adjudicated in the case of Campbell against appellant for the recovery of the property claimed bj1- appellees Jones and Bremond. It is well settled that all matters which might have been adjudicated in the suit will be concluded by the judgment therein rendered.

There is no error in the judgment in favor of appellees Jones and Bremond, and we recommend its affirmance.

Appellant claims that the court erred in the charge with reference to the sheriff’s deed to him, conveying all the interest of B. Lucretia Benfro in and to lot 5, and the improvements thereon. After the judgment was rendered in May, 1883, settling the rights of the parties then before the court to the lots in controversy, and pending a partition by the commissioners appointed for that purpose, to wit, July, 1873, an execution was issued by virtue of said judgment for ■costs, against the defendants therein, and was levied upon lot 5, and improvements thereon, or rather all the interest of Mrs. Benfro in and to that lot, which was advertised and sold on the 7th day of August, 1883, and bid off by appellant for $350.50, which it seems he paid and received a deed from the sheriff. In the subsequent proceedings brought about by Mrs. Benfro’s amended answer, making Bremond and Jones’ interest in the property known to the court, appellant asserted his title derived through the execution sale against Mrs. Benfro, who excepted to the amended petition on the ground that, as the property was being partitioned, it must be considered as in the custody of the law, and not subject to seizure and sale; and answered by general denial only.

Upon the trial the court overruled the special exception, but instructed the jury that no title passed by the sale and deed to appellant.

There was no error in overruling the exception. The property had not been seized by any writ, and the partition was not such a proceeding in rein as that the property could be considered in the custody of the law. There is no good reason perceived by us why real estate, although being partitioned, is not subject to levy and sale.

Our statute authorized the issuance of the writ. R. S., arts. 1420-1420c. And we know of no law that would exempt the property in controversy from levy and sale. As to the policy of permitting writs of execution to issue pending suits, and thereby.place it within the power of the officers of court to seize and sell the subject-matter of the suit for the costs incurred, the courts are in no way responsible. When the legislature adopts a policy and enacts laws with reference to it, the courts are only called upon to enforce the legislative will as embodied in the enactments. They do not inaugurate the policy, nor are they in any manner responsible for its results.

In our opinion the court erred in the charge with reference to the effect of the sheriff’s deed to appellant. If there is any good reason why that sale ought to be vacated or set aside, Mrs. Benfro should set it up in her pleadings and have an adjudication upon the question. But as presented by the record it appears regular and quite sufficient to vest the title in appellant.

Our conclusion is that the judgment as between appellant and Mrs. Benfro should be reversed and remanded.

Beveesed and bemanded.

[Opinion adopted February 6, 1885.]