Daugherty v. Cox's Adm'r , 13 Tex. 209 ( 1854 )

Lipscomb, J.

The appellant’s counsel rely on the particular terms of the statute. (Hart. Dig. Art. 1345.) It is in the following words: “ That when a sale has been made, and the “ terms thereof complied with, the Sheriff, Coroner, or Con- “ stable shall execute and deliver to the purchaser a convey- “ anee of all the right, title, interest and claim which the de- “ fendant in execution had in, and to, the property sold and they insist that under the broad terms used, of interest and claim, an equitable interest would be included. This may be correct in part; it may be that an equitable claim to title, or a resulting trust, may sometimes be subject to sale by execution, and yet every equity not subject to sale. If for instance, a purchaser had paid for the land and taken a bond for title, the land would be subject to execution against the purchaser; because there would be nothing uncertain, nothing to be done on the part of the purchaser, nor on the part of the vendor, but to make the title. If, however, other things were to be done by the parties, as in this case a selection was to be made out of a particular but large tract, until these things were done, there would be no such equity to any particular land as would make it subject to the levy of an execution against the holder of such equity. By the bond of Maxwell, no land was set apart; but it had to be selected by Sergeant, and then surveyed, to give the corresponding quantity with the amount to be conveyed by Sergeant to Maxwell, and it further depended on the contingency that Sergeant would make a conveyance for the land which constituted the consideration of Maxwell’s undertaking to convey. (See Boggart v. Perry and others, 1 John. Ch. R. 51.) It could not be contended that our statute in the Article cited went further than the statute 29 Charles II., in subjecting equitable and trust estates to execution; and perhaps its terms would go so far, but that would not he far enough to subject such an equity as the one claimed to be subjected to execution in this case.

At the time the execution was levied and the land sold, there was no distinct property that could be levied on and pointed ont to a bidder, and the result of the assessment shows what would be the sacrifice of property at Sheriff’s sale, if not designated and pointed out with sufficient certainty to enable the purchaser to know what particular land he was bidding for, and to enable the Sheriff particularly to designate what property he had sold. A tract of land of three hundred and seventy acres, more or less, with no other limitation, I suppose, to the more, than it is not to exceed in quantity Maxwell’s league, and this sold for ten dollars.

But what seems strange, the purchaser not believing that he had obtained a legal title, with certainly very imperfect sense of right and justice, asks that his title should be perfected to him by a Court acting on equity principles. If his title was bad at law, it is worse in equity and it would be so ruled in every Court governed by sound principles of equity. The judgment is affirmed.

Judgment affirmed.