32 S.W. 325 | Tex. App. | 1895
This is an action instituted by appellants *368 against appellee to try title to lot six, block four, in the town of Cotulla. The cause was submitted to the district judge, and a judgment was rendered in favor of appellee.
It was proved that on March 6, 1891, appellants, as plaintiffs, recovered judgment against M.P. Kerr and M.J. Kerr for $3395.38, with a foreclosure of a mortgage lien on certain town lots in Cotulla, the lot in controversy being among the number. It was provided in the judgment that the lots should be sold in a body, and it was so specified in an order of sale that was issued in said case, on March 30, 1891, directed to the sheriff of La Salle County. There was a full compliance with the law up to the date of sale. The sheriff then sold the lots, not in a body, as directed by the order of sale, but separately, and one D.C. Smith bought the lot in controversy, and a deed was made to him by the sheriff. Smith afterwards conveyed the lot to appellee. Both of the deeds were duly recorded.
Afterwards, on November 10, 1892, a second order of sale was issued by virtue of the same judgment, again directing the sheriff to sell the lots in a body. He did so on January 3, 1893, and appellants bought them, and a deed was made to them by the sheriff, which was duly recorded.
It is contended by appellants that the deed of the sheriff was a nullity, for the reason that the sale was not made in conformity to the decree and order of sale.
The statute requiring land in towns or cities to be sold by lots is directory, and, it would seem, is addressed to the officer who executes the writ. It is not a limitation upon the power of the court to order the sale in the mode deemed proper and most conducive to the interest of the parties concerned. If it were, however, the presumption in favor of the judgment would be that the exception under which a different mode may be pursued, had arisen in the case. We hold, therefore, that the judgment, if it could be attacked in this proceeding, was a valid one.
It was the duty of the sheriff to obey the decree and to follow the manner prescribed by it in the sale of the property. "No departure from the manner in which a sale is directed to be made, either under a judgment at law or a decree in equity, is permitted." Williamson v. Berry, 8 How., 543 (
As stated in the authority cited, the manner of sale prescribed by the decree was the law of the case for the sheriff, just as the statute requiring the lots to be sold separately would have been, had the decree not prescribed the form, and the failure to follow the decree would not, it would seem, have the effect of rendering the sale void, unless a similar irregularity under the statute would have a like effect. In other words, a failure to follow a form of proceeding laid down in the decree and one laid down in the statute would have similar results. If this proposition be correct, then authorities on the subject of failure of the officer executing a writ to follow the provisions of statute law as to the manner of sale can be looked to in leading to a correct conclusion in this case. Discussing irregularities in the sale of real property made by a sheriff, in Howard v. North,
In Ayres v. Duprey,
Speaking of the above decision, it is said in Boggess v. Howard,
The irregularity in the sale being of the class, as we believe, that does not affect the power to sell, it was of the class that could be cured by consent or acquiescence.
The first intimation that was given by appellants that they were dissatisfied with the sale was when they issued another order of sale, eighteen months after the land had been sold, and after it had been conveyed to appellee by the vendee of the sheriff. It was more than three years after the first sale before any action was taken to annul the sale, and then it came in the shape of an action of trespass to try title, in a different county from the one in which the judgment was rendered. The judgment debtor has never expressed dissatisfaction with the sale. We are of the opinion that not only is the sale not subject to a collateral *371 attack, but that appellants have waived all irregularities in the sale by their long silence and acquiescence in the same.
The judgment is affirmed.
Affirmed.
Writ of error refused.