Davis v. Rankin

50 Tex. 279 | Tex. | 1878

Bonner, Associate Justice.

This is a suit of trespass to try title for an undivided one-half interest in a lot in Sulphur Springs, instituted by the plaintiff and appellant, O. S. Davis, against the defendants and appellees, J. W. Rankin and John S. Whitworth. Judgment was rendered for appellees.

The chain of title relied upon by both parties is lengthy and involved in some confusion; but so much of the same as is considered necessary for this opinion may be stated as follows:

The plaintiff, in the first instance, claims under patent to Reilly and deed from Reilly to himself. The defendants claim under several mesne conveyances under the plaintiff down to a deed from Alice C. Beasley and her husband, J. F. Beasley, to D. H. Wood, of date August 10, 1858. Secondary evidence was introduced of a lost deed from Wood to one S. M. Brown, of date March 5, 1859. The testimony further shows that on the 7th of January, 1860, IT. Sewell recovered a judgment, before C. P. Campbell, a justice of the peace, against A. C. Beasley and S. M. Brown, upon which execution issued January 27, 1860, and was levied upon the undivided one-half interest in the lot sued for, the same having been pointed out to be levied upon by J. F. Beasley. At sale made under this execution, on March 6, 1860, this interest so levied upon was purchased by L. A. Leftwick, and the sheriff’s deed made to him was filed for record April 26, 1860. The levy by virtue of the above execution was indorsed “ John Mason, sheriff, by F. H. Patrick, deputy.” and the sheriff’s deed was signed in the same way. It was proven up for record by Patrick as deputy sheriff, and objected to, because it should have . been proven up by the sheriff in person. The defendants further claim under several mesne conveyances from Leftwick; also by deeds from other parties, the origin of whose titles is not shown, down to themselves.

Plaintiff seeks to reinvest himself with title, and to avoid that under which defendants claim, as follows:

Judgment in favor of A. C. and J. F. Beasley against S. M. Brown, in the District Court of Hopkins county, rendered May 14, 1860, enforcing the vendor’s lien on the land, upon petition filed on April 26, 1860.

Similar judgment in favor of D. H. Wood, on petition filed April 30, 1860.

Purchase by plaintiff", and sheriff’s deed made to him ¡November 10, 1860, under orders of sale issued on these judgments.

From the above, it will be seen that both plaintiff and defendants virtually claim title under S. M. Brown as a common source,—the plaintiff under the two judgments of the District Court, and the defendants under the prior judgment of the justice of the peace.

The first alleged error assigned, arises upon the introduction in evidence of the judgment and execution of the justice of the peace; the plaintiff' insisting that they were so informal as to be void, but if valid, that the title of Leftwick, the purchaser thereunder, was inferior to that acquired by the plaintiff under the sales enforcing the vendor’s lien of said Beasley and Wood.

This judgment is as follows:

“H. Sewell ] Bote §67.50; due Dec. v. z- 1st, 1859; citation issued

A. C. Beasley and S. M. Brown. J January 4th, 1860; F. H. Patrick, deputy sheriff; executed by copy January 7th. Defendants appeared and acknowledged judgment for principal, interest, and costs of suit. O. P. Campbell, J. P.”

This execution, so far as it is necessary, is here set out:

“ State of Texas,

“ Hopkins County,

“ To any lawful officer of said county:

“You are hereby commanded to make of the goods, chattels, lands, and tenements of S. M. Brown and A. C. Beasley the sum of §67.95, principal and interest, with cost bill annexed, and your costs and commissions arising, to satisfy a judgment had before me, on the 7th January, 1860, in favor of H. Sewell. Herein fail not,” &c. Dated January 27, 1860. Signed, C. P. Campbell, J. P., with cost bill, levy, &c., indorsed.

Heither of these is as formal as usually found in courts of record and as should characterize all judicial proceedings, but they are believed to be as much so as is generally found in proceedings of justices of the peace, who, from necessity, are often selected from persons not “ learned in all the wisdom” and technicalities of the science and practice of the law. It is believed that they are more certain than some which have been upheld by the liberal construction of this and other tribunals. To declare such proceedings void would affect very seriously many rights now considered secure, and, in the language of a learned author, in treating of the validity of judgments of justices of the peace, “ would end in the complete overthrow of most of their proceedings.” (Freem. on Judg., secs. 53, 53a; Clay v. Clay, 7 Tex., 250.)

The levy, sale, and deed having been in fact made by Patrick as deputy sheriff, and this being an officer known to the law, the objection that the deed was acknowledged by him for record, and not by the sheriff in person, was not well taken. (Miller v. Alexander, 13 Tex., 506; Towns v. Harris, 13 Tex., 512.)

The effect, then, of the sale and deed under this judgment and execution was to convey the legal title to the interest in the lot sued for to Leftwick. The legal title, then, having passed under this sale to Leftwick, did the subsequent sale to enforce the vendor’s 'lien, at which the plaintiff became the purchaser, under the circumstances as shown by the record, invest him with the superior title ?

As the plaintiff relies upon an equity to override the legal title, the burden of proof devolves upon him to show all the requisites necessary to make it superior to this legal title. (McAlpine v. Burnett, 23 Tex., 649.)

The sale under the judgment of the justice of the peace was prior in point of time to the institution in the District Court of both said suits against S. M. Brown; and the deed of the sheriff under the sale to Leftwick was recorded on the same day on which the suit of E. C. and J. F. Beasley was instituted. The judgment of the justice of the peace was against A. C. Beasley, and the land was pointed out to be levied upon by J. F. Beasley, he under the statute having the sole management of the property of the wife, whether her separate property or her community interest.

The suit in favor of D. H. Wood was instituted on April 30, 1860, some days after the deed from the sheriff to Left-wick had been recorded. We think, then, that the principle announced in the case of Byler v. Johnson, 45 Tex., 518, and other cases on this subject, should apply here, and that the plaintiffs in the subsequent suits in the District Courts should be held to have such notice of the legal title of Leftwick, as to have made him a necessary party to the suits to enforce the equitable lien, blot having been made such party, the judgment therein, under which plaintiff claims, could not, as to his interest, be made available as evidence to override the legal title under which defendants claim.

The plaintiff being required to recover on the strength of his own title, and having failed to prove a superior title in himself, the presumption in favor of the legality of the possession of the defendants and of the correctness of the judgment below should be indulged. As the case will not be remanded, it is not necessary to pass upon the other questions presented, and the judgment is accordingly affirmed.

Affirmed.