47 Tex. 197 | Tex. | 1877
Appellee Peterson brought a suit of trespass to try title for 575 acres of land in Lamar county ’against two persons in possession, and appellant John Cavar, naugh, as administrator of the estate of C. M. Cavanaugh, intervened, as their landlord, and made a defense to the action, as the defendant, claiming the land for the estate. A verdict and judgment were rendered for the appellee Peterson.
The title of Peterson, as adduced in evidence, was as follows : a deed from C. M. Cavanaugh and wife, for the land, on the 10th day of September, 1860, to Campbell; a mortgage on the land, to secure payment of a note of §1,000, from Campbell to Peel & Bumble, executed on the 24th of April, 1861, and recorded in Lamar county, on the 23d of September, 1861; a judgment, in favor of Peel & Bumble, on the note, with foreclosure of the mortgage in Harris county, on the 6th of May, 1868; an execution, ordering the land to be sold, issued on said judgment, on the 10th of June, 1868; a levy on the land by the sheriff of Lamar county, and a sale by him, on the 4th of August, 1868, to Eichard Peterson, for §230, which was paid to the sheriff) and a deed for the land executed by the sheriff to Peterson; a judgment of the Lamar county District Court, in favor of Campbell, in a suit by John Cavanaugh, as administrator, for the land, rendered at the Spring Term, 1868, (23d April.)
Appellant proved, by the sheriff, that he entered the levy on the execution, in the city of Paris, in Lamar county, and did not go upon the land to make the levy, and did not take possession of the land.
The appellant objects to tire chain of title made out by the appellee, upon two grounds: First, because the mortgage was not recorded within three months after its execution; and, second, because' the judgment having been rendered in Harris county, and not being a lien upon the land in Lamar county, and the Hen of the mortgage being lost by its being merged in the judgment, the levy was null and void because the sheriff did not go upon the land to make the levy.
The first ground, in view of the evidence before the jury, is answered by our statute, which makes the mortgage vaHd, as between the parties, from its date, whether recorded or not. (Paschal’s Dig., art. 4986.)
In support of the second ground, that the sheriff, to make a valid levy in such a case, must go upon the land, we are referred to the case of Leland v. Wilson, 34 Tex., 94. This court, upon a full consideration of that case, in connection with the adverse views often held by the court previously, has decided directly the contrary more than once. (Cundiff v. Teague, 46 Tex., 475; Catlin v. Bennatt, 47 Tex., 165.)
The sheriff does not take possession of the land, as he must, of personal property, when he makes a levy, nor does he put the purchaser in possession. It would be useless, therefore, to go on the land to levy the execution; and such has not been the practice in this State.
The court charged the jury, in effect, that it was unnecessary for the sheriff to have gone upon the land in order to make the levy valid, because the mortgage Hen continued up to the time of the sale. It is immaterial whether that was a correct reason or not, for excusing the sheriff from not having gone upon the land to' make the levy, as he was excused from doing it, without any reason existing for not doing it. It has long been the well-established doctrine of this court, that a levy of an execution levied upon land does not cHsturb the possession of the defendant in the execution,
It has also been held that a defective entry of levy does not vitiate a sale of land, there being a valid judgment, execution, and sheriff’s deed, where the purchaser had no notice or participation in any fraud in making the levy. (Coffee v. Silvan, 15 Tex., 358; Riddle v. Bush, 27 Tex., 676.)
In reference to the facts in evidence before the jury on the trial, there is no error in the judgment in favor of Peterson, the appellee.
It is contended that the evidence offered by the appellant, and excluded by the court, upon exception thereto, constituted a full defense in favor of appellant, and that the court erred in its exclusion from the jury, which appears by the several bills of exceptions taken by appellant contained in the record.
The evidence excluded was, that the deed, executed by C. M. Cavanaugh and wife to Campbell for the land, was without consideration, and made upon fraudulent and false representations sufficient to set it aside; that said Cavanaugh instituted a suit, in the District Court of Lamar county, against Campbell, in May, 1861, before Peel & Dmnble’s mortgage was recorded, to set aside and annul said deed, and .recover back the land; that the judgment, in 1868, in favor of Campbell, against the administrator of Cavanaugh, the appellant, before the sheriff’s sale, was rendered upon a compromise founded upon a mistake of fact, -which was, that Campbell had control of the said mortgage; that on account of said mistake, the attorney in fact of Campbell had agreed, in writing, with John Cavanaugh, the administrator, to set aside said judgment, and reinstate the case in court; that said written agreement was not filed in the clerk’s office with the papers of said cause, because of the absence of the clerk; that at the sale of the land by the sheriff, public notice of all these facts were given by the attorney of the administrator
But there was no evidence offered tending to show that Peel & Bumble, at the time the mortgage was executed, had any notice of the fraud of Campbell in purchasing the land from Cavanaugh in 1861, nor was there any evidence offered tending to show that the mortgage was not valid in every respect.
'Without some such evidence, all that which was offered as a defense was insufficient, and might well have been rejected by the court as not competent to affect the rights of a purchaser under the mortgage foreclosure, whatever notice of those facts- he might have had at the time of the sale by the sheriff. The mortgage being valid and binding, as between Campbell, Peel & Bumble, and Cavanaugh, at the time it was executed, the fact that it was not recorded until after the suit was brought by Cavanaugh against Campbell, to recover back the land for fraud in the original trade for it, did not affect the validity of the mortgage lien. Cavanaugh had acquired no new rights to the land in the meantime before the recording, nor had he been induced, by want of notice of the mortgage, to do anything or change his position in regard to the land.
The statute provides for a mortgage on land to he foreclosed in the county where the land is situated. It does not follow from that, that a judgment of foreclosure would be' void, if it was foreclosed in another county, the Bistrict Court having general jurisdiction of the subject-matter—the debt, and the mortgages to secure it. That judgment, being rendered in Harris county, was binding, and not being appealed
At the time the judgment of foreclosure was rendered, 6th of May, 1868, the land was Campbell’s, by a judgment in his favor, 23d April, 1868, as well as by deed of 1861, and so stood, uncontroverted, up to the time of the levy and sale of the land by the sheriff, 4th of August, 1868, so far as the title appeared of record. Ho bad faith can be imputed to Peel & Bumble, in any respect, in enforcing their lien.
The question, then, is, would notice, given at the sheriff’s sale, that Campbell had a voidable title to the land, which might be set aside by a revival and prosecution of a suit for that purpose, prevent a purchaser, at said sale, from getting a good title to the land ? The court has held, that a bona fide judgment creditor, without any notice of the equities of other parties, may sell the land levied on; and if his judgment is rendered in another county from that in which the land is situated, the lien attaches by the levy of the execution, and that a purchaser with notice, at a sale under said execution, would acquire a good title. (Grace v. Wade, 45 Tex., 522, and other cases.)
The judgment of Peel & Bumble, decreeing the mortgage lien on the land, in its force and effect, related back to the date of the mortgage, the validity of which gave character to the judgment, in respect to the lien decreed by it. It was conclusive in perpetuating and enforcing the original validity of the lien, as against Campbell. If Cavanaugh, when he brought the suit against Campbell to recover back the land, in April, 1861, had brought Peel & Bumble, as parties, into the suit, the fact of the mortgage not having been recorded up to that time, would not have been a ground for defeating
Judgment affirmed.
Affirmed.
