Morton v. Welborn

21 Tex. 772

• Court: Texas Supreme Court
• Decided: July 1, 1858
• Status: Published

Opinion

Wheelee, J.

The ruling of the Court, admitting the deposition of the witness Sims to prove the date of the original survey for Morton, we do not think material. The return upon the execution, and the Sheriff’s deed, show that the land was levied on and sold as the prpperty of the plaintiffs’ ancestor, held by virtue of a location and survey made for him upon the same certificate, upon which the patent issued under which they claim. It thus sufficiently appears that the title conveyed by the Sheriff's sale and deed is the same now sought to be made the basis of a recovery by the plaintiffs. The sale, if valid, divested the title of their ancestor, and they cannot recover. But, whether valid or not, it was averred in the answer and appearsln proof that the ancestor of the plaintiffs received the benefit of the .proceeds of the sale, applied to the satisfaction of the execution against him. And under the decision of this Court in the case of Howard v. North, (5 Tex. R. 290,) the plaintiffs cannot recover the property, without reimbursing the purchase money paid, which went to the satisfaction of the judgment against their ancestor. This is according to 'the plainest dictates of reason and natural justice; and this they have not done, nor offered to do. They, therefore, have not shown themselves entitled to recover in this action by averment or proof. And this dispenses with the necessity of revising the rulings of the Court complained of in respect to the validity of the defendants title under the Sheriff's sale. The judgment is affirmed.

Judgment affirmed.