Morgan v. Massillon Engine & Thresher Co. , 1925 Tex. App. LEXIS 598 ( 1925 )

WALKER, J.

We take the following statement of the nature, result and issues in this ease from appellant’s brief:

“Appellant, Geo. L. Morgan, brought this suit in the district court of Chambers county, Tex., in trespass to try title against the Mas-sillon Engine & Thresher Company, H. E. and A. • W. Marshall, and H. H. Ja'ckson, appellees. The defendants below and appellees herein answered by a plea of not guilty, and reconvened in trespass to try title, and prayed for title and possession of the land involved by cross-action. Appellant answered by a plea of not guilty, "and specially, in which he set up: (1) That on the 13th day of March, 1905, in the district court of Chambers county, Tex., in a certain cause wherein the Massillon Engine & Thresher Company was plaintiff, and J. M. Barrow and others were defendants, the said engine company recovered a money judgment against Lee, J. M. Barrow, and Clarance Barrow, in the sum of $2,802.42, and foreclosing a lien upon part of the land in controversy; that thereafter, on the 21st day of March, 1905, an execution was issued on said judgment, and that nó other order of sale or execution was ever issued thereon within 10 years from the date of said order of sale, and that, by reason thereof, said judgment was dormant, and that no valid order of sale could.issue thereon thereafter; (2) that on or about the 5th day of May, 1922, the appellee Massillon Engine & Thresher Company had the clerk of said court to issue on said judgment an alias order of sale directed to the sheriff of said county, commanding him to seize and sell said lands in satisfaction of said judgment; w-ho thereupon seized said land and sold the same at public sale, on the 6th day of June, A. D. 1922, at which said sale said engine company bought in said land, and thereupon said sheriff executed his deed thereto, therefor; (3) that, after the rendition of said judgment, and before said sale, in the year 1910 the defendant Lee Barrow died, and that in the' year 1914, after the rendition of said judgment, and before said sale, the defendant J. M. BarJ row died; that by reason thereof no .valid execution could issue on said judgment; that said judgment, order of sale, return thereof, and said sheriff’s deed were links in defendant’s chain of title, and that by reason of said matters and things, said alias order of sale was void, the sheriff’s sale a nullity, and that no title passed thereby, and that said sheriff’s deed jvas a nullity, and cast a cloud upon appellant’s title, and prayed that the said sheriff’s sale and deed be in all things canceled, set aside, and held for naught, etc.

“Before announcing ready for trial, plaintiff took a monsuit, and the case was tried on the cross-action of the appellee’s and appellant’s answer thereto, the court rendering judgment for the appellees for the title and possession of the land, to which action and judgment of the court appellant, in open court, timely excepted, gave notice of appeal, and in due time filed his appeal bond, assignment of fact, etc.”

A full and complete statement of the facts involved-in the injunction proceeding, wherein the district court of Chambers county restrained the execution of the judgment in favor of the Massillon Engine & Thresher Company against the Barrows, is found in the decision of the Supreme Court reported in (Tex. Com. App.) 231 S. W. 368. We quote as follows from that opinion:

“Clarence Barrow and wife, Rosa, Lee Barrow and wife, Josephine, and J. M. Barrow and wife, Jane, instituted this suit in the district court of Chambers county, Tex., naming the Massillon Engine & Thresher Company, a corporation, and E. R. Lafour, sheriff \ of Chambers county, Tex., as defendants, seeking to restrain the sale of the lands described in the petition — the corporation having procured the issuance of an order of sale upon a judgment which the corporation had secured in the district court of Chambers county, Tex., against Clarence, Lee, and J. M. Barrow, and this order of sale having been placed in the hands of the sheriff. Lee and J. M. Barrow having died during the pendency of the suit, the proper heirs were made parties thereto.

“The basis of the judgment against the three Barrows was this: On October 7, A. D. 1903, in order to better secure the corporation in the payment of an indebtedness which the Barrow brothers owed it, the three brothers, joined by their wives, executed and delivered a mortgage upon their undivided interest in the two tracts of land which are the subject of this controversy — one consisting of 540 acres; the other of 160 acres. Upon the indebtedness becoming due, and upon default in the payment thereof, that suit was instituted, but the wives were not made parties thereto. Judgment for the amount of the indebtedness, with foreclosure of the mortgage lien, was rendered; the judgment directing an order of sale upon the lands upon which such lien was foreclosed.

“The present suit for injunction is predicated upon the alleged ground that the land in question constituted, at the time of the execution of the mortgage, the homestead of the plaintiffs, and that the mortgage was not executed for the purpose of paying or securing the payment of any lien for purchase money, taxes, pr improvement upon such homestead.

“The court issued a temporary restraining order, and, upon final hearing, perpetually enjoined the foreclosure, by order of sale, of the judgment lien against the land claimed as homesteads by the plaintiffs, and in this final order decreed that, in so far as the judgment in the foreclosure suit purported to fix a lien against the land described in the judgment, it be canceled and held for naught. Upon appeal, the Court of Civil Appeals affirmed the judgment. 203 S. W. 933.

“J. S. Barrow died in 1892, leaving surviving him seven children — Clarence, Lee, and J. M. being of this number — and his wife, Eliza Jane Barrow, the mother of these children. It is admitted that the 540-acre tract, known as the Banda tract, was the separate property of J. S. Barrow, and the 160-acre tract, known as the Barrow tract, the community property of the marriage.”

After disposing of the legal issues involved, the Supreme Court remanded the case with the following instructions:

“We recommend, therefore, that the judgment of the district court be modified, so as to permit the carrying out of the order of sale, under the terms of the judgment in the original suit, of the undivided interest of Clarence Barrow in the Barrow survey, and of Clarence Barrow and the other defendants in error of their undivided interest in the 540-acre tract of land; and, as so modified, that the judgment be affirmed.”

Opinion.

While the issuance of the execution in the judgment -of Massillon Engine & Thresher Company against the Barrows was enjoined by the district court of Chambers county, an,d during all the time that case was on appeal, through the appellate courts of Texas until its final disposition by the Supreme Court on the 21st day of June, 1921, the plaintiff in that case was without legal authority to issue execution. Hp.d execution issued on that judgment, it would have been void, plaintiff would have been subject to contempt proceedings, and any sale made under such execution would have been void. Article 4660, R. S. of Tesas; article 4661, R. S. of Texas; Ward v. Billups, 76 Tex. 466, 13 S. W. 308; Ryan v. Raley, 48 Tex. Civ. App. 187, 106 S. W. 750; Seligson v. Collins, 64 Tex. 314; 17 Cyc. 1007, § 4; Lindsay v. Norrill, 36 Art. 545; Muncaster v. Mason, 17 Fed. Cas. 983, 2 Cranch C. C. 521; Noland v. Seetright, 6 Munf. (Va.) 185; Wakefield v. Brown, 38 Minn. 361, 37 N. W. 788, 8 Am. St. Rep. 671.

It is the modern rule that the injunction suspends the running of the statute. 17, Cyc. 1008. Therefore appellant’s first issue, as stated in his brief copied above:

“Where a sale of land under an order of sale is temporarily restrained and more than ten years elapse after the date of said order of sale and before the injunction suit is finally disposed of, does the granting of said restraining order relieve the plaintiff in execution of the duty of complying with article 3717, Complete Texas Statutes, 1920 [or Vernon’s Sayles’ Ann. Civ. St. 1914] in order to keep the judgment from becoming dormant? ”

—must be answered, in view of the authorities cited, which hold that an execution cannot lawfully issue while the enforcement of the judgment is restrained; that the failure to issue execution does not make the judgment dormant. It follows that the judgment obtained by the Massillon Engine & Thresher Company against the Barrows in 1905 was not dormant when the order of sale was sued out in this case, under which the land was finally sold.

Appellant states the second issue as follows:

“In view of article 3723, Complete Texas Statutes, 1920 [or Vernon’s Sayles’ Ann. Civ. St. 1914] on judgment rendered prior to the death of defendant, can a valid order of sale issue thereon, and will a sale of land by the sheriff in virtue thereof convey title?”

Article 3723 is as follows:

“Where a sole defendant dies after judgment for money against him, execution shall not issue thereon, but the judgment may be proved up and paid in due course of administration.”

In view of the mandate of the Supreme Court in Massillon Engine & Thresher Co. v. Barrow, supra, we do not think that article 3723 has any application to the facts of this case. It clearly appears from the opinion of the Supreme Court that, in disposing of the Massillon Engine" & Thresher Company against Barrow it was fully advised of the death of the Barrows, and made its order with -that fact before it. In suing out the order of sale and selling the land the plaintiffs in the judgment that had been enjoined during all those years literally followed the mandate of the Supreme Court, wherein it was recommended by the Commission of Appeals “that the judgment of the district court be modified, so as to permit the carrying out of the order of sale, under the terms of the judgment 'in the original suit,” etc. Only the land was sold that the order of the Supreme Court subjected to the original judgment. Since the Supreme Court itself ordered the land sold under an order of sale, after the death of,the Barrows, this court has no power to set aside such a sale nor to question its validity. Harris v. Hamilton (Tex. Civ. App.) 234 S. W. 684.