27 S.W. 843 | Tex. App. | 1894
Lead Opinion
Appellants sued to recover from appellees lots 2 and 21, in block 4, in the town of Big Springs, Texas.
John Pope, deceased, was the common source of title, appellants claiming as his heirs, and appellees as purchasers (1) of lot 2 at execution sale under a judgment against Jack Pope, in favor of J.A. Hodges; and (2) of lot 21 at trustee's sale under a mortgage executed by said John Pope to Phil H. Young, trustee, to secure a debt of $159, the sale having been made by E.S. Bicksler, substitute trustee, duly appointed as provided in said conveyance.
1. Appellants assign error to so much of the judgment as denied them a recovery of lot 2, contending that no title passed by the execution sale under which appellees claim, on the ground that the judgment upon which this execution issued was void; and upon the further ground, *306 that in consequence of the uncertain description of this lot contained in the levy, the sale was void.
This judgment was obtained by default before a justice of the peace, upon service of a citation on defendant therein, which was issued and served September 15, 1884, and cited him to appear on the first Monday in October, 1884, instead of the fourth Monday, as fixed by the Commissioners Court for the terms of the Justice Court in that precinct. The judgment bears no date, and contains no recital of service or appearance.
The execution, which was issued in December, 1884, and levied in January, 1885, and under which the lot was sold in February following, recited the judgment correctly, and so as to identify it, but gave its date as September 15, 1884. The return on the execution recited a levy on lot 2, block 4, without naming the town or county, but the sheriff's deed further described the lot and block as situated in the town of Big Springs.
The contention that this judgment was void on collateral attack, we think, was properly overruled by the District Court. The citation served on defendant, though insufficient to support a judgment by default, was notice to him of the pendency of the suit. He took no steps to prevent the judgment, or to have it set aside. The irregularities complained of, therefore, can not avail his heirs in this suit. Essig v. Lower,
The further contention, that no title passed because the levy indorsed on the execution is void for uncertainty of description, must also, in view of the fuller description contained in the sheriff's deed, naming the town (which we judicially know to be in Howard County) in which the lot is situated, and thereby identifying it, must also be overruled. This conclusion is supported by the following cases directly in point, which have several times since been approved: Coffee v. Silvan,
In the cases upon which appellants seem to rely, the uncertain description was in the attachment levies, and was carried forward into the judgments of foreclosure, and into the orders of sale; and hence, as the purchasers could not show a valid judgment and execution (order of sale), the deed, however perfect in its recitals, conferred no title.
In the case at bar, there was a valid judgment, execution, and sale prior to any intervening rights. Pfeiffer v. Lindsay,
We conclude, that the judgment in favor of appellees for lot 2 should be affirmed.
2. We come now to consider appellees' cross-assignments of error. The District Court held the trustee's sale void, because the trustee had not been requested by the grantor to make the sale, as provided in the mortgage. In view of the strict rule of construction which has been *307 applied by our Supreme Court to sales under such powers in mortgages, we must concur in this conclusion. Miller v. Boone, 23 S.W. Rep., 574.
We are of opinion, however, that in this case the heirs of the grantor should not have recovered lot 21 without refunding the money paid by appellees at the void sale in discharge of the lien created by the mortgage.
They alleged these facts in their answer, and prayed a recovery of the money so paid, in case their title failed. The court denied them any equitable relief, on the ground that the proof failed to show how much had been paid on lot 21, it appearing that lot 18 was also included in the mortgage and sold at the same time to the same party, the two lots selling for the gross sum of $185.
As each lot was alike liable for the whole debt, we think the heirs of the grantor should not be permitted to recover the lot in question without fully reimbursing appellees the money paid in discharge of the burden resting upon it. Fuller v. O'Neil,
The judgment against appellees for lot 21 will therefore be reversed, and the cause remanded for a new trial in reference thereto.
Addendum
A more extended examination of the authorities, induced by the cogent argument of appellants' counsel submitted as a part of this motion, has convinced us that the judgment in favor of appellees for lot 2 should also be reversed, on the ground that the Justice Court judgment, through which they deraigned title, is void.
In the conclusions heretofore filed, we held that the citation served on John Pope, September 15, 1884, which notified him to appear before the justice of the peace on the first Monday instead of the fourth Monday (the term as fixed by the Commissioners Court) in October, 1884, while too defective to support a judgment by default, when assailed in a direct proceeding, should be held sufficient to support such judgment in a collateral suit.
While no case has been cited or found in this State directly in point, the decisions elsewhere seem to sustain the contention that such process is not merely defective, affording some notice and some service, which would be sufficient on collateral attack, but that it does not purport, either in form or substance, to be such as the law requires, and is therefore void. Hence no jurisdiction of the person is thereby, even defectively, obtained, a void writ being in legal contemplation no writ at all. *308
In Culver v. Phelps, 130 Illinois, 217, which was a suit to remove cloud cast by the sale of property under a judgment rendered the 6th day of December, 1875, on a summons issued the 6th day of October, 1875, commanding the defendant to appear at the next October Term, several terms intervening, the process was held null, and the judgment void.
In Kitsmiller v. Kitchen,
In Falkner v. Guilk, 10 Wisconsin, 506, a judgment rendered in a partition suit, and offered in evidence as a muniment of title, was held void, because notice in that suit did not name the time for appearance, though service of the notice was accepted.
In Rice v. Bank, 31 Pacific Reporter, 1024, the Court of Appeals of Colorado restate with much force the reasons for holding such process void, but that, like all of the other cases save one cited by appellants, was a direct attack on the judgment, which was enjoined because the citation stated an impossible date.
In Steel v. Metcalf, 4 Texas Civil Appeals, 313 (23 Southwestern Reporter, 474), which was a suit for damages against a sheriff for executing an order of sale directed to the sheriff of another county, we held the process to be void on its face in the county where its execution was attempted.
Our statute, article 1570, requires the citation to cite the defendant to some regular term of the Justice Court. This it did not do, nor purport to do. If it had purported to cite him to some regular term, naming it, but incorrectly stating when it was to be held, it would probably have been sufficient on collateral attack. It would then be a defective statement merely of the term for appearance, the true date of which, as fixed by law, the party would be presumed to know. Rigsbee v. Bowler,
We conclude that, inasmuch as the default judgment rendered by the justice of the peace is silent upon the subject of service, and the citation offered in evidence as the foundation of this judgment, with service indorsed thereon, did not confer jurisdiction of the person, a want of jurisdiction was affirmatively shown, and therefore the court below should have so held. Treadway v. Eastburn,
We, however, still adhere to our conclusions as to the other lot. Appellees alleged and proved, that they held it under a trustee's sale made to foreclose a valid mortgage thereon, and that the money paid by appellee Ludwig Krapf as purchaser at this sale extinguished the debt which this mortgage had been executed to secure, praying for affirmative relief. The fact that he afterwards conveyed this lot to Paul Schultz, who in turn conveyed it to his wife, Serena Krapf, was no sufficient replication to the equitable defense interposed. It was *309 still, on the face of this record, the property of Ludwig Krapf, there being no evidence of any separate estate in his wife, if indeed that would change the status.
While the prayer of appellees to recover back the money paid may not have been strictly accurate, enough was stated and claimed to show that they asked for affirmative equitable relief, and under the case made by the proof, they were entitled to retain possession of the lot until appellants should make an equitable reimbursement of the money expended in removing the incumbrance therefrom.
The rehearing will be granted, and the entire judgment reversed and the cause remanded for a new trial in accordance with this opinion and that heretofore filed, as here modified.
Reversed and remanded.
