Laird v. Winters

27 Tex. 440 | Tex. | 1864

Bell, J.

We are of opinion that the decree rendered by the District Court of Gonzales county at the Fall Term, A. D. 1856, in the suit by G. F. and S. E. Henry against the heirs of Barney Randle, in so far as the said decree orders the sheriff to place the purchaser at the commissioner’s sale in possession of the tracts of land purchased by them respectively, could have no effect upon the rights of any person who was not a party to said decree, and did not, therefore, authorize the sheriff to execute the writ of possession in such manner as to turn out of possession any one not a party to the decree. The general subject of the manner in which writs of possession ought to be executed, and the remedies to which parties who are injured by their improper execution are entitled, is one of much interest, and not altogether free from difficulties; and we do not wish to be understood as going any further than to say, that in a case like the present a person who has been turned out of his possession by a writ issuing by virtue of a decree to which he was in no sense a party, may proceed by action of forcible entry and detainer to recover the possession, and ought not to be driven to an action in which the title may be called in question, nor even to a motion in the District Court from which the writ issued, to be restored to his possession.

The judgment of the court below is affirmed.

Judgment affirmed