16 S.W. 805 | Tex. | 1891
On March 14, 1887, appellants Fannie B. Smith and W. McB. Smith filed this suit in the District Court of Montague County to recover of appellees J.S. and Martha Perkins 220 acres of land out of the S. M. G. Railway Company Survey No. 1, situated in Montague County, Texas, and for $1000 damage. The appellees pleaded not guilty, and in reconvention that they were in possession and owners of the land sued for by a regular chain of title from the heirs of E.J. Jones, deceased, to appellee M.C. Perkins, the wife of J.S. Perkins; that appellants had a fraudulent, void, and pretended claim to the land, and that plaintiffs claimed the land under judgment rendered in a Justice Court of Clay County, Texas, by J.K. Bass, justice of the peace, October 24, 1877, in favor of Wm. Watson v. E.J. Jones for $32.70 and costs; that execution issued upon said judgment and was levied upon 440 acres of land, of which the land in controversy is a part; that sale was made thereunder the first Tuesday in May, 1878, when said 440 acres was bid in by J.K. Bass for the sum of $5; that at date of sale the land in controversy was worth $500; that the execution under which sale was made was void, because issued by Bass for his own and other costs and for payment of the principal judgment; and further, because said land levied on was pointed out and purchased by Bass while he acted as justice of the peace; that appellants through their chain of title had notice of such facts; that Jones, under whom both parties claim, died intestate in the year 1879. The appellees pleaded further, that said execution was void because issued in name of plaintiff in said suit instead of in name of officers of the court, praying for affirmative judgment against appellants and removing cloud from title. They also tendered in court the amount of Bass' bid ($5), with interest. Appellants and appellees both claimed the land in controversy through E.J. Jones as common source. The case was tried before the court, a jury being waived, which resulted in a judgment against appellants in favor of appellees for all costs incurred in the prosecution of the suit, and judgment in favor of appellees for recovery of the land in controversy, canceling sale of the 440 acres of land sold by the sheriff to Bass, and the deed made to Bass by the sheriff, from which judgment the appellants by appeal bring said cause to this court for review.
The matters of fact set forth in the above plea in reconvention of the defendants were proved, and the court below held the execution sale and sheriff's deed to be void, but upon what precise ground does not appear, as there are no conclusions of law and fact in the record. The defendant also pleaded that the execution and sale were irregular and void, because the writ of execution was issued to the county of Montague before any had been issued to Clay County, where the judgment was rendered. *155
But if this is of any importance under the circumstances in which the question is now raised and presented, we are of the opinion that the point is not sustained by the record. As we understand from the statement of facts an execution was issued to Clay County November 10, 1877, "returned no property," and thereafter on March 18, 1878, another writ was issued to the sheriff of Montague County, under which the land was sold on the first Tuesday in May of that year. Were it otherwise, we are of the opinion that it would have been at most but an irregularity insufficient to render the sale void. It was admitted that the appellants purchased the land sued for and a part of the land sold at said sheriff's sale from the purchaser thereat, J.K. Bass, and that the sheriff's deeds and the deeds to appellants were duly recorded prior to any right or title to the land acquired by appellees. It was also admitted that appellees claim title to the land by deeds executed October 12, 1885, from the sole surviving heirs at law of said E.J. Jones, the defendant, in the execution, and that the appellees "were in possession of the land in controversy at the date of the filing of this suit." It was further conceded that plaintiffs' vendor, J.K. Bass, the justice of the peace who rendered the original judgment and issued the execution, was identical with the J.K. Bass who purchased the land under the execution at the sheriff's sale, but there is no admission that plaintiffs were actually advised or cognizant of that fact. In the view we take of the case it is unimportant to determine whether the similarity of the name in all of the proceedings in plaintiffs' chain of title was sufficient to give them notice of the identity of the person. The appellants' assignments of error present the following propositions so far as need be noticed, viz.: (1) that the court erred in holding that the execution sale and sheriff's deed thereunder were void, or even voidable; (2) that if voidable only, the defendants should not have been allowed to impeach them in this suit, because the attack upon them is not made in any direct mode recognized by law but is collateral only, and because no attack thereupon was made by any party at interest within the time allowed by law. It does not appear that E.J. Jones or any one else ever instituted any proceedings whatever to vacate or set aside the execution the sale of the land, or the sheriff's deed thereunder, or objected to the same in any court before the plaintiffs instituted this suit. The first attack, therefore, upon these proceedings was made by the appellees in their above plea in reconvention, which was filed on the 2d day of October, 1888, more than ten years in fact after the sale of the land by the sheriff of Montague County to J.K. Bass, Esq. It is apparent from the statement of the case that if the execution and sale of land to said Bass are void the judgment below should be affirmed, because in that contingency these proceedings would be ineffectual to pass the legal title, which would of course have remained in the execution debtor C.J. Jones, and at his death descended to his heirs at law, and as a *156
consequence the defendants, having acquired that title and there being no such adverse possession as would sustain limitation, could not only attack these proceedings collaterally but would be entitled to the land on account of the inherent strength of their own title. But we are unable to perceive any reason for holding these proceedings absolutely null and void. If the court below so held because Bass was the purchaser at the execution sale, then we think the court erred in that respect. Nay, more; we doubt if that fact would even render the proceedings voidable. We have been unable to find any provision of law, nor has any been cited, that forbids a justice of the peace from purchasing property sold at public venue on an execution issued by him in a suit tried by him. There is manifest indelicacy and impropriety in the act, yet we can not find that it is in contravention of any law. If that officer had been required by law to make the sale or to see to its regularity or to confirm it afterward the case might and probably would be very different, as for example a purchase by a probate judge at an administrator's sale ordered by him. Livingston v. Cochran,
But it is contended that a motion to set aside the sale for fraud or irregularities could have been made in his court, and that he thus disqualified himself from sitting in the trial of the motion. If this view is correct we do not know that this would have made the sale void, but we do not believe that the position can be successfully maintained that a court of a justice of the peace has jurisdiction to entertain a motion and set aside an execution sale of land after it has been completed and deed delivered to the purchaser. We have already said that the effect of such sale is to vest the title to the land in the purchaser if the sale is regular or only voidable. A proceeding having for its object the destruction of all the evidences of that title as well as the annulment of the title itself would be practically a suit to try title to land or remove cloud therefrom, or at least, when the ground of the motion is fraud and gross inadequacy of price, would be an appeal to the equity powers and jurisdiction of the court. Of such proceedings, whether by motion or original suit, we do not believe that Justice Courts have jurisdiction. They have never been regarded as "high courts of chancery," nor allowed in this State to try title to land or remove cloud from title thereto. In such cases resort must be had to the District Court of the *157 county where the land is situated. Const. 1875, art. 5, sec. 8; Id., art. 1198, sec. 13; Hickman v. Stone, 5 S.W. Rep., 835, and authorities cited.
We conclude that the sale of the land to J.K. Bass was not void for that reason, nor is there any other sufficient reason shown that would render it void. Was it even voidable? The only other irregularity alleged is that the execution for costs was issued in the names of the parties to the suit instead of the names of the officers in whose favor the costs were adjudged. This was proper, and was not, even an irregularity. Freem. on Ex., sec. 21; Hudson v. Morriss,
The judgment therefore rendered in the court below is incorrect and should be reversed and rendered as requested by the appellants. This renders it unnecessary to make any authoritative ruling on the question of laches, which has been discussed by both parties, though it does not appear that the appellants interposed this defense in any way in the court below. This it seems they should have done in some mode to be entitled to the benefit of the plea of laches or of stale demand. Hensel v. Kegan,
For the other reasons assigned we conclude that the judgment should be reversed and here rendered for the appellants, so as to allow them to recover of the appellees the 220 acres of land described in plaintiffs' petition, and all costs of this appeal and those that have accrued in the District Court.
Reversed and remanded.
Adopted May 10, 1891; and on June 23, 1891, on motion of appellees, the judgment was so changed as to reverse the judgment and remand the cause for further proceedings.
Davis Harris argued a motion for rehearing. *159