Borden v. Tillman

39 Tex. 262

• Court: Texas Supreme Court
• Decided: July 1, 1873
• Status: Published

Opinion

McAdoo, J.

There is no doubt in our minds that under our law and the former decisions of this court, the writ of venditioni exponas, under which the land in controversy was sold, is a valid writ, and that the sale-thereunder was as valid, and the sheriff’s deed'to the purchaser (the appellant) as complete a conveyance as they would have been had the sale been made under the original execution.

The original execution was levied on the land. The execution was returned with the levy endorsed, the-property being then advertised for sale and a writ of venditioni exponas prayed for. The writ was issued, directing the very property to be sold by virtue of the levy.

In Lockridge v. Baldwin, 20 Texas, 306, the right of' the sheriff to sell land under this writ was clearly recognized. •

Judge Roberts, in delivering the opinion of the court,. says: “Execution is defined to be the act of carrying into effect the final judgment of a court. The writ which authorizes the officer so to carry into effect such judgment is also called an execution. (1 Bouv. Law Dic., 495.) Venditioni exponas is a writ of execution directed to the sheriff to sell goods and chattels, and in some States lands, which he has taken in execution by virtue of a fieri facias and which remain unsold.”

In the case above quoted from, the sale was of land.

The court erred in sustaining the objections of the defendants in the court below to the admissibility in evidence of the writ of venditioni exponas. It should have gone to the jury as a part of the evidence of title.

The charge of the court was erroneous, in that it was based on an erroneous view of the legal effect of the-venditioni exponas and the deed of the sheriff.

These evidences of title should have gone to the jury, and they should have been instructed to find for the plaintiff, unless the proof showed that she had notice of the conveyance of the land (prior to her purchase) by Tillman to McRae.

For the errors above noticed, the judgment of the court below is reversed and the cause remanded.

Reversed and remanded.