French v. McGinnis , 10 Tex. Civ. App. 7 ( 1895 )

This suit was brought by the appellees as the heirs of Joseph McGinnis, against appellants, to recover one-third of a league of land. The appellants claimed the land through an instrument purporting to be a deed from Thomas S. Parker, sheriff of Nueces County, to David Ayres. The case was tried by the court without a jury and judgment rendered for appellees, and this is the third appeal from judgments in their favor. The opinions on the other two are in 69 Tex. 19, and 3 Texas Civil Appeal, 86.

The land in controversy was patented by the State of Texas to Joseph McGinnis on the 23rd day of October, 1849. Prior to the institution of this suit Joseph McGinnis died intestate, unmarried, and without issue. The appellees are his brothers and sisters and their descendants, and as such inherited his estate, which includes the land involved in this suit.

Conclusions of Law. — The appellants in their brief have expressly waived all their assignments of error except one. It complains of the court's failure to allow the appellants to introduce in evidence, as an ancient instrument, the following deed, viz:

"STATE OF TEXAS, } "County of Nueces. }

"Know all men by these presents, that whereas, an execution having been issued by A. Stewart, a justice of the peace in and for the county of Galveston, and State aforesaid, directed to the undersigned as the sheriff of said county of Nueces, in favor of David Ayers, and against Joseph McGinnis, bearing date of the 26th day of May, A.D. 1851, and I, the said sheriff, having levied upon, as the property of said McGinnis, a certain tract of land hereinafter subscribed, and having advertised the same for sale according to law, did on the first Tuesday in the month of August, instant, offer the same for sale at public auction at the court house door of said Nueces County, in the town of Corpus Christi, between the hours prescribed by law; and David Ayers having bid the sum of ten dollars for said tract of land, which being the highest and best bid therefor, it was struck off and sold to said Ayers. Now know all that I, the undersigned Thomas S. Parker, sheriff of said county of Nueces, by virtue of the power in me vested by law, for and in consideration of the promises and the sum of ten dollars to me in hand paid by the said David Ayers, have this day and do hereby grant, bargain, sell, and convey unto the said David Ayers the aforesaid tract of land known and described as follows [here follows description], to have and to hold the above granted tract of land to the said Ayers, his heirs and assigns forever.

"In testimony whereof, I have hereunto set my hand and scroll for seal, this 5th of August, A.D. 1851.

[Signed] "THOS. S. PARKER, [Seal] "Sheriff N.C."

We are of the opinion that the testimony offered by appellants, together with the recitals in the deed, is not sufficient to establish a judgment and execution against Joseph McGinnis, or a valid sale of his property thereunder; and that the court did not err in refusing to admit the deed in evidence.

Under the law in force at the time the deed recites the execution as bearing date, executions from Justice Courts were required to be returned in sixty days, and it was made the duty of the officer to whom any such execution was directed to execute and return the same on or before the return day thereof. O. W. Dig., arts. 859, 1131. And it has been held in an opinion, adopted by the Supreme Court of this State, "that a sale of land under an execution made after the return day thereof is a nullity and the purchaser acquires no title thereby, is well settled" by certain decisions of the court of last resort in this State. If such is a "well settled" principle in Texas, a question — on account of its seeming conflict with expressions of the Supreme Court in other cases (Lockridge v. Baldwin, 20 Tex. 304; Irvin v. Ferguson, 83 Tex. 495), as well as with the common law (Freeman on Executions, section 106, page 231) — which we refrain from passing upon, it might be conceded that the evidence offered to establish the loss or destruction of the supposed judgment and execution was sufficient to warrant the presumption of the truth of the recitals in the deed; yet, as the recitals show that the sale was made after the execution was returnable, the invalidity of the deed would be shown by such presumption of the truth of its recitals. However, our opinion is not based upon this ground, but upon the insufficiency of the testimony to warrant the presumption of the truth of the recitals in the deed.

Affirmed.