No. 6642 | Tex. | May 13, 1890
Lead Opinion
—Appellees instituted this suit to recover undivided interests in two tracts of land lying in Hardeman County.
Their petition charged that while they were minors they with the owners of the other interest in the land signed a power of attorney authorizing one William F. Ferguson to execute a deed of conveyance of the land, and that acting under the power Ferguson sold and conveyed the land to parties under whom the defendants claim title to it.
The defendants, among other defenses, pleaded the.following:
“ That heretofore, to-wit, the 21st day of December, 1878, in a certain suit then pending in the District Court of Travis County, in the State of Texas, Do. 5070, styled The State of Texas v. William F. Ferguson, Henry Woodruff Bendy, Elijah A. Ferguson, and Elizabeth A. Ferguson, the plaintiffs in said suit, the State of Texas recovered a judgment against the defendants in said suit, William F, Ferguson. Henry Wood-ruff Bendy, Elijah A. Ferguson, and Elizabeth Ferguson, in the sum of $2442.46, together with her costs in that behalf expended, and that execution issued therefor. That said William F. Ferguson, Elijah A. Ferguson, and P. L. Ferguson and the plaintiffs in this suit, making six in all, were brothers, and the said Elizabeth A. Ferguson was their mother, and a widow at the time the said judgment was rendered. That the said judgment, as soon as it was rendered, became and was the debt of the said Elizabeth A. Ferguson, and was a charge upon all of her property subject to execution for the payment of debts, and all of her said property could by execution issued on the judgment he sold for the payment thereof. That afterward, to-wit, on the 17th February, 1879, a certified copy of the said judgment was filed in the clerk’s office of the County Court of Shackelford County, Texas, to which county the county of Haskell, which was then unorganized and in which the lands in controversy in this suit are situated, was attached for judicial purposes, and on, to-wit, the 19th day of February, 1879, was duly recorded in the office of the county clerk of the County Court of said Shackelford County, in record book A, pages 629 and 630, book of mortgages, and thereby became a lien on the land sued for -in this case to the extent of the interest owned by the said Elizabeth A. Ferguson in said land. That at the date of said judgment and the record of a certified copy thereof as aforesaid the title to all of said lands, so far as any interest claimed by the plaintiffs in this case is concerned, was in said Elizabeth A. Ferguson, who held a deed of gift therefor, making it her separate property; and neither the State of Texas, its officers, agents, or attorneys had any notice, either actual or constructive, of any pretended claim to said land, or any part thereof, by the plaintiffs in this suit or any of them. That afterward, to-wit, on the 2d day of December, 1879, within one year from the date of said judgment, execution was issued thereon to Travis County, Texas, as required by law, which execution was on, to-wit, the 4th day of December, 1879, returned by the sheriff of said Travis County “not executed, no property found ” in that county. That afterward, to-wit, on the 4th of December, 1879, within one year from the date of said judgment, another execution was issued on said judgment to Jasper County, Texas, where all the defendants in execution then resided.
The court sustained plaintiffs’ exceptions to this defense, and after hearing the evidence rendered judgment in favor of plaintiffs according to their prayer. The facts alleged in the answer are sufficient to show that at the dates of the conveyance of the land in controversy by their mother to plaintiffs and the deed by virtue of the power of attorney to Folts & Donnan, the judgment in favor of the State was a subsisting lien upon it. As the land was sold for the express purpose of providing for the discharge of the judgment lien, it follows, as the result of repeated decisions of this court, that even if plaintiffs are not bound by the deed to Folts & Donnan on account of their minority, they yet can not annul that deed and recover back the land without restoring the money that went to discharge the judgment lien, with interest. Howard v. North, 5 Tex., 290" court="Tex." date_filed="1849-12-15" href="https://app.midpage.ai/document/howard-v-north-4887281?utm_source=webapp" opinion_id="4887281">5 Texas, 290; Giddings v. Steele, 28 Texas, 748; French v. Grenet, 57 Tex., 273" court="Tex." date_filed="1881-05-20" href="https://app.midpage.ai/document/french-v-grenet-4893797?utm_source=webapp" opinion_id="4893797">57 Texas, 273; Northcraft v. Oliver, 74 Tex., 162" court="Tex." date_filed="1889-05-28" href="https://app.midpage.ai/document/northcraft-v-oliver-4896199?utm_source=webapp" opinion_id="4896199">74 Texas, 162.
We think the court erred in sustaining exceptions to so much of the answer as set up the judgment lien and the right of the defendants to be subrogated to the rights and remedies of the State under its judgment. The defendants offered record evidence to prove that the judgment in favor of the State was a subsisting lien on the land at the date of its conveyance to them, which was excluded.
We can see no objection to the evidence, except that after an exception, was sustained to the pleading there remained no issue for it to apply to. Upon another trial it should be admitted.
For the error noticed, the judgment must be reversed and the cause remanded. •
As the other grounds of error now insisted upon may not occur upon another trial, we deem it unnecessary to rule upon them now.
Reversed and remanded.
Delivered May 13, 1890.
Rehearing
ON MOTION FOR REHEARING.
Douglas & Lanier and L. W. Campbell, on motion for rehearing. rehearing.— The point made in the first ground for rehearing was not raised in the court below nor in the briefs and assignments of error in this court. But if the law is as we understand it to have been "construed by the decisions of this court since the trial below, this being a question of law, may now be properly applied to this case on rehearing. We contend that though the
—Appellees in support of their motion for rehearing contend that the recording of the State’s judgment in Shackelford County on the 17th day of February, 1879, did not create a lien on the land in controvesy situated in Haskell County, which was then attached to Shackelford County for “judicial purposes only.”
The Act of November 9, 1866, was in force when the judgment was rendered, and directed that “a transcript thereof, duly certified by the clerk under the seal of the court, be recorded in the book used for the registration of mortgages” in the county where the land was situated.
The record in this instance was made before the passage of the Act of March 30,1881, and can not derive any aid from that act, which provides that “all deeds, conveyances, mortgages, deeds of trust, or any other writ
While this act settled for the future the disputed question as to where such records should be made, it did not in any way affect the legality of records previously made.
Appellees in support of their contention against the validity of the record of the judgment made in the county of Shackelford, to which Haskell was then attached as an unorganized county for “judicial purposes only,” refer us to the case of Baker v. Beck, 74 Tex., 562" court="Tex." date_filed="1889-10-22" href="https://app.midpage.ai/document/baker-v-beck-4896270?utm_source=webapp" opinion_id="4896270">74 Texas, 562. The question in that case was whether a deed for land situated in an unorganized county and attached for “judicial purposes only” to another county was before the act of 1881 required to be recorded in the county from which the territory ■of the unorganized county was taken or in the county to which it was attached for “judicial purposes only,” and it was decided that the county from which the territory was taken was the proper place to record the deed.
The question before us is as to the proper county for a judgment to be recorded in to make it operate as a lien on land, and not as to the proper place for recording a deed conveying land.
The questions are materially different. We think that the recording •of a judgment for the purpose of making it a lien is strictly a judicial purpose. It is as much one step towards collecting a judgment as is the levy of an execution issued on the judgment. The sheriff’s deed when made relates back to the date of the record, which thereby becomes an essential part of the title conveyed by him. There can be no doubt about the propriety of issuing the execution upon the judgment to the sheriff of the county to which the unorganized county is attached for judicial purposes and in which the judgment was rendered, nor about that officer’s power to sell the property at the court house of his own county.
It is useful and important for bidders to have the means of ascertaining whether the judgment under which the sale is being made is a lien on the land at the time and place of making the sale.
It is true that knowledge of all records relating to the land would be useful under the same circumstances; but the fact that the law before 1881 did not require conveyances to be recorded in the county where the judicial proceedings were conducted can not be held to modify or limit the effect of laws with regard to such proceedings, which include all of the steps taken in the actions for the recovery of debt from the filing of the
The judgment in favor of the State was recorded at the proper place and in due time, and proper diligence having been exercised in the issuance of executions, according to the averments of the answer, a lien upon, the land did exist in favor of the State.
We do not think that this-is a proper case to apply the rule contended for as applicable between principal and surety so as to devolve the whole of the judgment in favor of the State upon the one-sixth of the land purchased by defendants from W. 1\ Ferguson, or from his wife, rather.
The answer of defendants shows that only one-half of the land was conveyed by appellees, and that defendants only acquired from them one-half of the land in controversy. Plaintiffs in the court below claimed one-half, and not the whole of it, and by the expression in our opinion that they can not “recover back the land without restoring the money,” we did not intend to be understood as deciding that they must refund the whole amount of the purchase money paid by defendants.
Before they can be permitted to recover one-half of the land they must refund one-half of the purchase money paid by defendants, and interest thereon from the time that the money was paid by defendants.
If it shall be made to appear that defendants have had the actual use of the land, they should be charged with that, or with the excess of the value of the use over permanent and valuable improvements if they have placed such on the land. This question is raised by appellees by their motion for a rehearing, but as it is not otherwise properly presented it does not become necessary or proper for us to say more on that branch of the cause.
Appellants in their reply to the motion for rehearing ask us to pass upon the following proposition, which they contend is raised by one of their assignments of error:
“The voluntary conveyance by Mrs. Ferguson to her children was void as to her creditors, and being' void the title remained with her, and her subsequent sale, effected through her agent, William F. Ferguson, to Folts & Donnan for the purpose of paying her debts, was a valid sale and can not be questioned by the donees claiming under the voluntary conveyance.”
We can not give our assent to this doctrine. The question was considered by this court and decided otherwise in the case of Miller v. Koertge, 70 Tex., 162" court="Tex." date_filed="1888-03-06" href="https://app.midpage.ai/document/miller-v-koertge-4895649?utm_source=webapp" opinion_id="4895649">70 Texas, 162.
The motion is overruled.
Motion overruled.
Delivered June 10, 1890.