Hancock v. Metz, 15 Tex. 205

Hancock v. Metz

15 Tex. 205 | Tex. | 1855

Wheeler, J.

We are of opinion that the motion to dismiss

the writ of error ought not to prevail. No good reason is perceived why the plaintiff and intervenors may not join in prosecuting the writ of error, though their interests are adverse, since they are alike interested in obtaining a reversal of the judgment. But if the intervenors may not properly join, that would not authorize a dismissal of the writ of error" as to all the plaintiffs in error, but only as to those who were improperly joined. Wo are of opinion, however, that all the parties agrieved by the judgment may well join in prosecuting the writ of error, and may ask a reversal of the judgment, in those matters wherein it affects injuriously and erroneously their respective rights.

It is unnecessary to revise the rulings of the Court upon the admissibility of evidence, offered by the plaintiff. For, had the Court ruled differently, still we are of opinion that judgment must have been for the defendants, upon the merits of their title ; which was older in point of time, and superior to that of the plaintiffs and intervenors.

*210The principal and only question in the case, upon the merits, which requires notice, was considered and- decided by this Court in the case of Sydnor v. Roberts. (13 Tex. R. 598.) There, as in this case, land had been sold under an execution issued from another county ; and there, also, as in this case, the title of the purchaser was assailed on the ground that more than the period of a year had intervened without the issuance of execution, anterior to the execution under which the sale was effected. But it was held that the execution was not therefore absolutely, void and a nullity, so that the officer could not justify, nor the purchaser acquire a title under it. It was an irregularity which rendered the execution voidable, if taken advantage of by the proper person and in proper time; but, being only voidable, it was a good justification, and however irregular, the purchaser would acquire a good title under it. The general rule is that where the officer could justify under the execution, the purchaser will be protected in his title. (Woodcock v. Bennett, 1 Cow. R. 711, and authorities cited; 16 Johns. R. 537; 2 Bibb, 518.) The purchaser of land at a Sheriff's sale is not bound to examine into the regularity of the proceedings, anterior to the sale, nor is his title affected by such irregularities, where they have taken place without his concurrence or participation. (Howard v. North, 5 Tex. R. 290.) However irregular a proceeding may have been, the title of the purchaser will not be affected by it, unless the proceeding was absolutely void. (See cases cited in Sydnor v. Roberts, 13 Tex. R. ; Howard v. North, 5 Tex. R. ; 13 Johns. R. 97 ; 1 Swan, (Tenn.,) R. 10.)

The title acquired by the defendants under the Sheriff’s sale and deed, was valid and effeetal to divest and pass the title of the defendant in execution, under whom the plaintiff and intervenors claim ; and the ruling of the Court upon the admissibility of the plaintiff’s evidence of title, is, therefore, immaterial. If the evidence had been admitted it could not have availed the plaintiff or interveners anything, nor could it in *211any way have affected the result of the trial. The judgment is affirmed.

Judgment affirmed.