Donnebaum v. Mary L.

54 Tex. 362 | Tex. | 1881

Quinan, Commissioner.

The constable’s deed to Donnebaum was insufficient to convey the land. It does not sufficiently describe the land. Under the strict rules of construction applied to conveyances by officers who sell property under execution, a deed like that in this case, purporting to convey an undesignated part of a larger tract of land, is void. Wooters v. Arledge, Galveston Term, 1881, infra.

But the title of a purchaser of land at sheriff’s sale does not depend upon the deed. It rests upon a valid judgment, levy and execution sale, and the payment of the money. The sheriff’s deed is not essential. Fleming v. Powell, 2 Tex., 225; Baker v. Klepper, 26 Tex., 629.

The, testimony admitted without objection proves a valid judgment, an execution issued upon it, a levy describing with sufficient certainty the land levied upon, the sale of it at the proper time and place, a return by the officer of the sale to Donnebaum, and the payment of the purchase money. This established prima facie his equitable right to the interest of the defendant in execution in the land.

It was shown that the debt upon which the judgment in favor of Wilson was rendered was contracted by I. H. Tinsley prior to January 1, 1878, and was then due and owing. On that day Tinsley conveyed to his wife (the defendant), for love and affection, several tracts of land in various counties (embracing the land in controversy), with all his horses and cattle, and the proof established conclusively that this was all his property. By that deed he reserved to himself all the property, should his wife separate from him, and to his heirs after his death, should she marry again.

Very clearly, as against his creditors, this conveyance was wholly inoperative. One must be just before he is generous. Stat. of Frauds; Lynn v. Le Gierse, 48 Tex., 140.

The defense made by Tinsley and wife against Donnebaum’s right to recover had no force whatever. They pleaded payment of the judgment, and produced a receipt for the amount seized by the constable. But the constable explains how that receipt came to be executed; that Tinsley had promised to pay the money, and as the officer was compelled to be absent from his office, he made out the receipt and left it with the justice of the peace to be delivered to Tinsley on his payment of the money. That Tinsley never paid the money. That the constable never delivered the receipt to him, or authorized any one to do so until the money was paid. Wilson, the plaintiff, also testified that he never had been paid the money by Tinsley. And Tinsley himself, testifying, is Utterly silent upon the subject. The inference is irresistible that the receipt was surreptitiously obtained. At all events its execution is explained. There is nothing in the transcript to show that the sale was not fairly made, in exact conformity to the law. Indeed, the only proof offered in this respect was by Tinsley, who swore that he had never been called upon by the officer to point out property. Mere irregularities of this sort do not affect the title of the purchaser, who is not connected with them. Cavanaugh v. Peterson, 47 Tex., 204; Riddle v. Bush, 27 Tex., 677; Howard v. North, 5 Tex., 290.

But if this were material, he is contradicted by the officer, who swears positively to the fact; and that Tinsley ' was not thereby injured is rendered certain by his own oath, that “he owned no other property except what was conveyed to his wife by the deed.”

There is no proof that the land did not sell for an adequate price. Its value was not in proof.

The judgment of the court, therefore, is against the evidence, and for this the cause ought to be reversed and remanded.

Reversed and remanded.

[Opinion delivered March 8, 1881.]