Johnson v. Caldwell

38 Tex. 217

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

Opinion

Walker. J.

This is an action of trespass to try title. The plaintiffs claim under a sheriff’s deed made in pursuance of a sale which it is claimed was irregular and void.

The sheriff levied on the property, but suffered the execution to become dead in his hands before making a sale. A term of the District Court having intervened, the sheriff proceeded to sell without an execution, or venditioni exponas.

In Towns v. Harris et al., 13 Texas, 507, it was held that a sale of real property made in this State after the return day of the execution, was void.

So far as any title to the purchaser is concerned, we hold the same doctrine; but in Howard v. North, 5 Texas, 390, the court, in treating a case of this kind, held that where a sale on execution under a valid judgment is void, and the debtor brings suit to recover the property, if there is no fraud on the part of the purchaser he will not be compelled to restore the property, without being reimbursed the amount which he paid, and which went to discharge the judgment.

This, too, is an equitable doctrine of the law, and we think should be carried out in this case.

We have not thought it necessary to lay down this rule in Grace v. Garnett, for the reason that in that case there are evidently strong presumptions of fraud in the sale, if indeed any sale were made, which is not shown by the constable’s return.

The court properly ruled out the sheriff’s deed in this case, but as we think without protecting the appellants’ equitable right to recover back the purchase money in the absence of any proof of fraud in the sale.

The judgment is therefore reversed and the cause remanded, to be proceeded in, in accordance with this opinion.

Reversed and remanded.