Stroud v. Casey

25 Tex. 740 | Tex. | 1860

Wheeler, C. J.

It is perfectly well settled, that where there has been a sale under execution of lands or goods, .and a stranger is the purchaser bona fide, his title will not be affected by the subsequent reversal of the judgment. It is equally well settled, that if the plaintiff in execution or his attorney is the pm-chaser, the reversal of the judgment puts an end to his title. “A man recovers land in a real action, and takes possession under an execution; or he acquires title to land by extent, or. to goods by sale under execution, and the judgment is afterwards reversed. So far as he is concerned, his title is at an end, and the thing shall be restored in specie, not merely the value for which it was extended or purchased, but the thing itself. The only exception is where the sale is to a stranger bona,fide, or where a third person has bona fide acquired some collateral rights from the party, before the reversal.” (Per Cowen J., in Dater v. The Troy T. P. & R. R. Co., 2 Hill, N. Y. R., 633; Bac. Ab. tit. “Execution,” M. 3.) The plaintiff in execution and his attorney who recovered the judgment, are deemed to be purchasers with notice of all errors and irregularities in the proceedings and judgment in the suit. That' an attorney for the plaintiff in a suit purchasing under execution in it is a purchaser with notice of all irregularities in that suit, was decided in the case of Simonds v. Catlin, (2 Caine’s Rep., 61,) in an opinion by Kent, J.; and numerous cases to the same effect might be cited. But the doctrine is too well settled, both as to the purchase by the plaintiff in execution and his attorney who obtained the judgment, to require a further reference to authorities. The cases cited by counsel for the appellees do not controvert this doctrine.

In the present case, the plaintiff in execution, who is the plaintiff in this suit, was the purchaser of the property at the sheriff’s sale; and the interveners, who purchased from him, are his attorneys who obtained the judgment. Under these circumstances., they cannot occupy the attitude of strangers to the erroneous judgment, but are to be deemed purchasers with notice of the errors in the proceedings in that suit. The consequence is, that the reversal of the judgment puts an end to their title. The failure of title in the plaintiffs and intervenors will require a reversal of the judgment rendered in their favor, and the reversal of the judgment as to these parties will require the 'reversal of the judgment recovered by the defendant Aiken, against his co-defendant Stroud, as the latter judgment is dependent upon the former.

The judgment is reversed and cause remanded.

Reversed and remanded.