Maverick v. Flores , 71 Tex. 110 ( 1888 )

Walker, Associate Justice.

Both parties claimed under one Petra Zambrano y Flores, the appellant, who was the plaintiff below, under an execution, sale and transfers down to her. The defendants by inheritance.

The defendants had possession of the lot for twelve years before 1875. In February, 1875, one Adams took possession under one of the joint owners (whose estate plaintiff has) and remained in adverse possession for about two years. He had a lease from defendants for one adjoining lot on the north, and in 1877 sold out to one Dunn, who sold to Brown, who attorned to Flores and paid him rent; Brown was succeeded in possession by Tatum, also paying rent to Flores, The lots held by these tenants were used together.

On the trial the plaintiff read a judgment and order of sale of the district court made in 1844 in favor of John W. Smith, guardian, etc., v. Petra Zambrano y Flores. Plaintiff then offered the execution docket of the court and the entries thereon in said case of Smith, guardian, v. Petra Zambrano y Flores as follows:

“Execution issued 4th September, 1851, directed to any lawful officer of Bexar county, too late to levy on real estate according to law, to the next term of the district court, Sept. 29, 1851.

“John Crawford, sheriff B. Co., by R. J. Jones, deputy.”

“Pluries execution issued 5th April, 1852, directed to sheriff B, Co. No property found in my county. John Crawford, sheriff B. C., by James Gross, deputy.”

“Execution (order of sale) issued 11th April, 1853, executed by levying on within described property, and advertised and sold according to law on 1st Tuesday May, 1853, 3d of said month, to S. G. Newton, for ten dollars, he being the best bidder for the same. W. B. Knox, sh’ff, by R. J. Jones, deputy.”

Objection was made to the testimony and sustained upon the ground “that it did not appear from said entry that execution had issued upon said judgment within one year from its date.”

Plaintiff then offered certified copy of deed of date May 3, 1853, made by W. B. Knox, sheriff of Bexar county, by R. B. Jones, deputy, for the lot in controversy, reciting sale under the judgment and execution and conveying to S. G. Newton all the right, title and interest of the said Petra Zambrano y Flores in said lot. Objections were sustained because no basis remained after exclusion of the docket entries above.

Plaintiff then offered together the entries on the execution docket in said case, and the copy of the sheriff’s deed to Newton. They were excluded because it did not appear that execution had issued upon the judgment within one year from its rendition. Regular transfers were read from Newton down to plaintiff for the lot.

The plaintiff objected to evidence of title offered by defendants on alleged ground that by their entry through the attornment of Brown & Tatum they were estopped from denying her title.

The court rendered judgment for the defendants, and the errrors complained of so far as necessary to be noticed here are the exclusion of the testimony to the sale by the sheriff and the failure to render judgment for plaintiff upon the testimony.

Plaintiff insists that the tenancy of Adams, Dunn, Brown and Tatum in succession under her title and the attornment by Brown & Tatum to the defendants subordinated their title to that of the plaintiff, and that such relation appearing plaintiff was entitled to recover.

There was no tenancy in fact by defendants under plaintiff, and the testimony is insufficient to constitute a constructive tenancy under the law.

It was the duty of Brown to notify plaintiff of the attack by defendants upon his possession. And it is questionable under the testimony whether Tatum owed fealty to the plaintiff. The title was put in issue in this action. The court did not err, therefore, in the judgment upon the testimony admitted.

There is no sufficient testimony to support the pleas of limitation. There is no connecting link with the sovereignty of the soil, unless, perhaps, both parties claiming under common source, such link may be presumed—no deed duly recorded with payment of taxes, nor possession continued consecutively for ten years after deducting the period during which the statute of limitations was suspended.

It has been repeatedly held that a sale under an execution issued under a dormant judgment is not void, but only voidable and at the instance of the defendant in execution. (40 Texas, 158, Boggess v. Howard; 29 Texas, 225, Hawley v. Bullock; 20 Texas, 287, Anderson v. Richardson; 15 Texas, 209, Hancock v. Metz; 13 Texas, 598, Sydnor v. Roberts. See also Freeman on Executions, secs. 29, 30.) Upon these authorities we hold that the exclusion of the entries in the execution docket and of the sheriff’s deed, was error, and for such error the judgment below is reversed and the cause is remanded.

Beverised and remanded.

Opinion delivered June 1, 1888.