Brackenridge v. Cobb , 2 Tex. Civ. App. 161 ( 1893 )

There is involved in this suit the title to about 3000 acres of valuable land situated in Cooke County. One J.W. Wilson is the common source of title. The land was first levied on and sold under execution against the Stone Cattle and Pasture Company, J.W. Wilson, and others, as the property of J.W. Wilson, under a judgment in favor of Thomas Trammell Co. Appellees, W.E. Cobb and J.J. Lang, claim under this judgment, levy, and sale. Appellants claim under a judgment lien and a subsequent levy and sale thereunder, against substantially the same parties. This judgment was obtained by appellant the First National Bank of Austin, and the abstract thereof was recorded in Cooke County subsequent to the levy and prior to the sale under which appellees claim. There was a trial without a jury, and as the court's conclusions of fact contained in the record cover all the material issues of fact and are sustained by the statement of facts, we here adopt them as our conclusions of fact in this case.

Appellant's first assignment of error presents the question, whether the record of the abstract of the judgment in favor of the First National Bank of Austin is sufficient to create a lien, on account of the manner in which the name of said bank was indexed. The name seems to have been written in the alphabetical index kept by the clerk for that purpose under the name "Plaintiff," and under the letter "B," as follows: "Bank, First National, of Austin." The court below held this to be insufficient. He, however, found as a fact that the judgment had been indexed.

The statute makes the indexing of the names of both plaintiffs and defendants essential to the creation of a lien, but does not prescribe exactly how this shall be done. Mr. Black, in his work on Judgments, section 406, lays it down as the purport of decisions, that "a sufficient degree of accuracy is attained in such indexing if an intending purchaser (for example), exercising a reasonable degree of care and a reasonable degree of intelligence in making a search, could not fail to be apprised of the existence and character of the judgment." We are, however, cited to no case directly in point, and have been unable to find any; and as the question is one of importance, and not necessary, as we think, to the disposition of this appeal, we leave it undecided.

The second, third, and ninth assignments of error, submitted together by appellant, attack the levy and sale under which appellees deraign title, because of the issuance at the same time of executions to Wise, Cooke, Wichita, Archer, Baylor, and Wilbarger Counties, and because of certain levies made under these executions subsequent to the levy in question. We are of opinion that the matters complained of by the these assignments were but irregularities, which did not render the levy and sale void; and that inasmuch as the court found that they did not tend to depreciate the price of the property sold, they would not constitute sufficient ground to set aside the sale, especially after the lapse of more than four years. Freem. on Ex., secs. 49, 50; Railway v. Morris, 67 Tex. 692; Earle v. Thomas, 14 Tex. 583 [14 Tex. 583].

We also conclude that the proposition asserted in said assignments, that the judgment must be held satisfied because of these subsequent levies, under the facts disclosed by the record and found by the court below, can not be sustained.

We are of opinion that the inconclusive circumstances relied upon to show a satisfaction of this judgment were not sufficient to require a finding that it had been satisfied in full at the time of the sale, and hence that the sale was void. Freem. on Ex., sec. 269.

The twelfth assignment insists that the purchase by appellees at a trustee's sale under the deed of trust in favor of Gregory, Cooley Co. (which deed of trust was held to be void), amounted to an abandonment of their title under the execution sale. Our conclusion upon this assignment is, that the purchase at the trustee's sale, being in compromise of the litigation about the validity of the deed of trust, was intended to strengthen and did not have the effect to destroy the title already acquired.

The fifth assignment of error pronounces the execution sale void because the sheriff who executed the writ was brother-in-law to one of the defendants therein, to-wit, D.H. Phillips. In the absence of a statute declaring such a disqualification, we conclude that the act of the sheriff was not as if done without any official authority and hence void. For a review of the authorities on this question, see Barker v. Renick, 43 New Hampshire, 235; see also Mechem on Public Officers, sections 518, 524.

It follows from these conclusions, that appellants did not acquire by their purchase under a subsequent execution sale under a judgment lien which, if valid, was subsequent to the execution lien under which appellees claim, a superior title to that of appellees; and therefore that appellants can not recover the property in controversy. They contend, however, if not entitled to this relief, that appellees should be decreed to hold the land in trust for appellant bank, and that equitable relief be granted. This prayer is not accompanied by any offer to do equity; and we are of opinion, that in view of the delay in bringing this suit and of the changed condition of the parties interested, under the facts found by the learned judge, the vacation of the execution sale under which appellees deraign title would be manifestly inequitable, and that no error was committed in refusing equitable relief. Freem. on Ex., sec. 307a.

This disposes of all the other assignments of error.

The judgment will therefore be in all things affirmed.

Affirmed.

A motion for rehearing was overruled.