Whitney v. Krapf , 8 Tex. Civ. App. 304 ( 1894 )

Appellants sued to recover from appellees lots 2 and 21, in block 4, in the town of Big Springs, Texas.

John Pope, deceased, was the common source of title, appellants claiming as his heirs, and appellees as purchasers (1) of lot 2 at execution sale under a judgment against Jack Pope, in favor of J.A. Hodges; and (2) of lot 21 at trustee's sale under a mortgage executed by said John Pope to Phil H. Young, trustee, to secure a debt of $159, the sale having been made by E.S. Bicksler, substitute trustee, duly appointed as provided in said conveyance.

1. Appellants assign error to so much of the judgment as denied them a recovery of lot 2, contending that no title passed by the execution sale under which appellees claim, on the ground that the judgment upon which this execution issued was void; and upon the further ground, that in consequence of the uncertain description of this lot contained in the levy, the sale was void.

This judgment was obtained by default before a justice of the peace, upon service of a citation on defendant therein, which was issued and served September 15, 1884, and cited him to appear on the first Monday in October, 1884, instead of the fourth Monday, as fixed by the Commissioners Court for the terms of the Justice Court in that precinct. The judgment bears no date, and contains no recital of service or appearance.

The execution, which was issued in December, 1884, and levied in January, 1885, and under which the lot was sold in February following, recited the judgment correctly, and so as to identify it, but gave its date as September 15, 1884. The return on the execution recited a levy on lot 2, block 4, without naming the town or county, but the sheriff's deed further described the lot and block as situated in the town of Big Springs.

The contention that this judgment was void on collateral attack, we think, was properly overruled by the District Court. The citation served on defendant, though insufficient to support a judgment by default, was notice to him of the pendency of the suit. He took no steps to prevent the judgment, or to have it set aside. The irregularities complained of, therefore, can not avail his heirs in this suit. Essig v. Lower, 120 Ind. 239; Wilkerson v. Schoonmaker, 77 Tex. 615; Williams v. Ball,52 Tex. 603; Williams v. Haynes, 77 Tex. 283.

The further contention, that no title passed because the levy indorsed on the execution is void for uncertainty of description, must also, in view of the fuller description contained in the sheriff's deed, naming the town (which we judicially know to be in Howard County) in which the lot is situated, and thereby identifying it, must also be overruled. This conclusion is supported by the following cases directly in point, which have several times since been approved: Coffee v. Silvan, 15 Tex. 354 [15 Tex. 354]; Riddle v. Bush, 27 Tex. 675.

In the cases upon which appellants seem to rely, the uncertain description was in the attachment levies, and was carried forward into the judgments of foreclosure, and into the orders of sale; and hence, as the purchasers could not show a valid judgment and execution (order of sale), the deed, however perfect in its recitals, conferred no title.

In the case at bar, there was a valid judgment, execution, and sale prior to any intervening rights. Pfeiffer v. Lindsay,66 Tex. 123; Allday v. Whitaker, 66 Tex. 669 [66 Tex. 669]; Riordan v. Britton, 69 Tex. 198 [69 Tex. 198]; Holmes v. Buckner, 67 Tex. 107.

We conclude, that the judgment in favor of appellees for lot 2 should be affirmed.

2. We come now to consider appellees' cross-assignments of error. The District Court held the trustee's sale void, because the trustee had not been requested by the grantor to make the sale, as provided in the mortgage. In view of the strict rule of construction which has been applied by our Supreme Court to sales under such powers in mortgages, we must concur in this conclusion. Miller v. Boone, 23 S.W. Rep., 574.

We are of opinion, however, that in this case the heirs of the grantor should not have recovered lot 21 without refunding the money paid by appellees at the void sale in discharge of the lien created by the mortgage.

They alleged these facts in their answer, and prayed a recovery of the money so paid, in case their title failed. The court denied them any equitable relief, on the ground that the proof failed to show how much had been paid on lot 21, it appearing that lot 18 was also included in the mortgage and sold at the same time to the same party, the two lots selling for the gross sum of $185.

As each lot was alike liable for the whole debt, we think the heirs of the grantor should not be permitted to recover the lot in question without fully reimbursing appellees the money paid in discharge of the burden resting upon it. Fuller v. O'Neil,69 Tex. 349; Northcraft v. Oliver, 74 Tex. 162.

The judgment against appellees for lot 21 will therefore be reversed, and the cause remanded for a new trial in reference thereto.

ON MOTION FOR REHEARING.