Casseday v. Norris

49 Tex. 613

• Court: Texas Supreme Court
• Decided: July 1, 1878
• Status: Published

Opinion

Gould, Associate Justice.

The counsel in this case having made an agreed statement of the points of law and of fact involved in the record, and having furnished the court with their briefs and such agreed statement, printed in pamphlet form, the case has, on motion, received precedence on the docket.

The suit was brought by appellee, S. E. Norris, to recover 1,345 acres of land, deraigning her title under an administration sale, the validity of which is the first question presented. By reference to the agreed statement, it will be found that the sale was applied for and was ordered to defray expenses of administration, and to satisfy a locative claim, which was treated by the administrator and the court as a moneyed demand, equivalent to one-third of the appraised value of the land located. The power of the court to order a sale to defray expenses of administration is clear. (Paschal’s Dig., art. 1314.) The sale was one which the court had jurisdiction and authority to order, and the claim that it purports to have been made simply to make partition between the estate and the locator is not established by the agreed statement. On its face, the order was not void; and if it could have been attacked by a party interested in the estate in a proper proceeding as voidable, the statement shows that the entire proceeding was consented to and acquiesced in by Walker, the sole heir, and that as against appellant, who claimed under Walker, the sale was valid. The only other question is as to the effect of a sale and deed by the United States marshal by virtue of an execution and venditioni exponas, under a judgment in the United States Circuit Court at Austin against J. M. Norris. Appellant produced such a judgment and deed, showing a sale by the marshal at the court-house door of Bell county. The land levied on and sold, however, was actually in McLennan county, though as the lines were understood to be at the time of the sale a small part would be in Bell county. Appellant claims that as the sale was made in the marshal’s district it was valid, although not made at the court-house door of the county-seat of the county in which the land is situated. Under the statutes of this State, as construed by this court, a sheriff' of one county has no power, by virtue of an execution in his hands, to sell lands in a different county; but such sales must be made at the court-house door of the county in which the land lies. (Paschal’s Dig., art. 3776; Alred v. Montague, 26 Tex., 735.) Under the statutes of the United States and the decisions of the Supreme Court, the proceedings on final process out of the Federal courts are governed by the State laws. (U. S. Rev. Stats., secs. 916, 788; Wayman v. Southard, 10 Wheat, 1; Riggs v. Johnson County, 6 Wall., 192; Smith v. Cockrill, 6 Wall., 756.)

Our opinion is, that the United States marshal, in levying on and selling lands by virtue of execution, was required to conform to the laws of the State, and to sell the land at the court-house door of the county in which it lies; and, consequently, that the sale by the marshal of lands in McLennan county, made at the court-house of a different county, was unauthorized and invalid.

The conclusion that this sale was invalid on this ground, renders it unnecessary to consider whether it was objectionable on the ground of the insufficiency of the description of the land. On the statement and questions presented, the judgment is affirmed.

Aeeirmed.