Morris v. Balkham , 75 Tex. 111 ( 1889 )

GAINES, Associate Justice.

This suit was brought by appellant Adella Morris, joined by her husband, to recover of Hattie A. Balkham, F. C. Bailey, E. M. Fowler, J. A. Reddick, and Sam Berliner a half interest in a lot in the city of Palestine, and for jiartition. The husband of Hattie A. Balkham was made a party defendant. Fowler, Reddick, and Berliner disclaimed title to the premises in controvérsy. Bailey appears-to have been a tenant of Mrs. Balkham and in the possession of the lot.

Both parties claim title under a conveyance of the lot in controversy made February 4, 1881, by C. A. and Hattie Calhoun to II. W. Van Ha-gen. At that time the appellee Hattie A. Balkham was Van Hagen’swife. He died September 12, 1886, leaving plaintiff Adella Morris, his daughter by a former wife, his sole surviving descendant. On the 9th of December, 1884, Fowler, Reddick, and Berliner recovered a judgment in the District Court of Bexar County against Charles Baker and H. W. Van Hagen for the sum of 8625.80 and costs. On the 27th day of' March, 1886, a pluries execution was issued by the clerk of that court to the sheriff of Anderson County against the property of Charles Baker and William Van Hagen, purporting to be upon a judgment corresponding in all respects with that above mentioned, except that William Van Hagen was named as defendant therein instead of H. W. Van Hagen.

Tinder this execution the lot in controversy was levied upon and sold by the sheriff as the property of William Van Hagen, and was bid in for the sum of five hundred dollars by the plaintiffs in execution. The sheriff made them a deed purporting to convey all the right, title, and interest of William Van Hagen in the property. H. W. Van Hagen’s Christian name is shown to have been Hiram Watkins. After the death of Van Hagen a motion was made by the plaintiffs in the judgment (who were also purchasers at the sheriff’s sale) in the District Court of Bexar County to amend the execution under which the lot was sold so as to make it appear as an execution against the property of H. W. Van Ha-gen instead of William Van Hagen. The motion contains no prayer for notice to Van Hagen’s heirs, and none appears to have been given. Yet on the 7th day of May, 1887, the court granted the motion and entered an order amending the execution. On the same day Fowler, Reddick, and Berliner conveyed the lot to defendant Hattie A. Balkham for the consideration of $200.

Such being the evidence, the court gave judgment for the defendants. In this we think there was error. We are aware that many courts have gone very far in allowing amendments of executions, and we have found one decision which holds'that an execution may be amended after a sale under it by the substitution of the true Christian name of the defendant, as shown by the judgment, instead of another inserted by mistake. Vogt v. Ticknor, 48 N. H., 242. But in Battle v. Guedry, 58 Texas, 111, it was held by this court that an execution against P. B. Clements ivas not supported by a judgment against J. P. Clements, and a sale under such an execution did not pass the title to property OAvned by the latter. We think it requires no argument to show that the ruling of our court is correct. In the present case the judgment was against H. W., Van Hagen, the execution against the property of William Van Hagen, and the sheriff’s deed purports to convey the lot in controversy as the property of William Van Hagen.

The only difference between the case last cited and that now before us is that in the present case there was an attempt to cure the irregularity by amending the execution after the sale. The order was entered without notice to the heirs of the defendant in execution, who Avas then dead. It was a nullity. In our judgment, if the proper notice had been given, it would not have been competent for the court to allow the amendment, so as to give validity to the sale. It Avould be an unjust rule to permit an execution against B, under Avhich his title in a certain parcel of real estate had been sold and conveyed by the sheriff, to be amended so as to make it an execution against A, and to give to the sale the effect of passing the title of the latter in the property. We conclude that the evidence showed the title of H. W. Van Hagen did not pass by the sheriff’s sale, and that the court should have given the plaintiff Adella Morris judgment for one-half of the property in controversy, with a decree for partition.

It is also claimed by appellants that the title to the lot in controversy did not pass by the sheriff’s sale, because it was the homestead of H. W. Van Hagen and his wife. It had been their homestead, but Mrs. Balk-ham testified that before the sale was niade they had abandoned it as a place of residence, and had moved to San Antonio, with the intention never to return to it. This evidence was uncontradicted, and hence the court did not err in holding that it had ceased to be a homestead.

¡Neither was there error in refusing to allow plaintiffs to prove that when the lot was sold an attorney representing II. W. Van Hagen and wife gave notice that it was their homestead. Van Hagen and wife could not thus make evidence for themselves, nor can the plaintiff, as the heir of H. W. Van Hagen, avail herself of the declarations of his attorney as evidence in the case.

For the error pointed out the judgment is reversed and the cause remanded.

Reversed and remanded.

Delivered November 15, 1889.