RAINEY, Associate Justice.
This is an action of trespass to try title, brought by appellant against appellees, to recover the land in controversy.
The facts are, that in 1859, A. Rhine, the then owner of the land, deeded same to W. M. Allen, part of the purchase money not being paid. In 1860, Rhine brought suit in Collin County for the unpaid purchase money, and a judgment of foreclosure was awarded him. An order of sale was issued, directed to the sheriff of Grayson County, which was returned for want of time to sell after seizing the land and advertising the same for sale. An alias order of sale was issued and delivered to the sheriff of Grayson County, and the land sold thereunder. A. Rhine became the purchaser, his bid being credited on the judgment, and the sheriff made him a deed. In 1865 A. Rhine, by warranty deed, conveyed the land to Isaac Rhine, who in turn, by warranty deed, conveyed same to appellant, who paid her separate money for same.
In 1874 W. M. Allen deeded the land to Joseph Bledsoe, and in 1882 Bledsoe deeded part of the land to W. T. Cutler, and Bledsoe and Cutler deeded all of the land to part of appellees.
Appellant made the executors of A. and I. Rhine parties, and prayed in the alternative, that if she could not recover the land, she be subrogated to the rights of A. Rhine under the foreclosure proceedings. Rhines’ executors plead to the jurisdiction of the court, on the ground that they lived in Collin County and the estates were administered there, which plea was sustained. Defendants filed exceptions to plaintiff’s plea for subrogation, and plead the statute of limitation of ten and two years as against the judgment. The exceptions were sustained, and upon the trial the court instructed a verdict for appellees, from which an appeal was taken.
The first proposition to be considered is, whether the sale of the land in controversy made by the sheriff of Grayson County under the alias order of sale, if the order of sale was directed to the sheriff of Collin County, is void, or voidable only.
Appellant claims that sale made under such circumstances is voidable only; that the first order of sale vested the sheriff of Grayson County with power to sell the land and convey a good title, and as he had proceeded to seize and advertise for sale, he had the right to sell, whether an alias order of sale issued or not, notwithstanding the return day of the first had expired. In support of this position he quotes various sections of Freeman on Executions.
It is true, that in section 58 of said work, Mr. Freeman, in speaking of the writ of venditioni exponas, says: “ The venditioni exponas was so frequently issued as to create the impression that it was a writ of authorization as well as of compulsion, and was necessary to enable the officer to proceed with the sale. Such was not the fact. It gave the officer no authority not previously possessed by him. Notwithstanding the return of the fieri facias, he could sell the property levied on as well without as with a venditioni exponas.” This seems to apply more strictly to personal property, as the officer by “levying the writ obtains a right of possession and a special property in the goods seized, which continues after the return day, and authorizes him to sell as effectually as if the original writ remained in full force.”
But some jurisdictions hold a different doctrine as to real estate. Mr. Freeman, in the same section, says: “A levy upon real estate gives no-special property, and no right of possession to the officer making the levy;, and hence it has been inferred that after the return day of the writ under which the levy was made, he occupies no official or other relation towards such property, and has no power to dispose of it and thereby make effectual the lien created by the levy. Where this view prevails, an exception exists to the general rule, that a venditioni exponas confers no-authority, and it is then necessary, after the return day of an execution, that this writ issue to empower the officer to sell real estate levied upon but not sold, and a sale without such writ is void.”
The Supreme Court of this State has held repeatedly, that a sale of land under execution made after the return day thereof is void, and no title-passes thereby. Hester v. Duprey, 46 Texas, 625; Mitchell v. Ireland, 54 Texas, 301; Cain v. Woodward, 74 Texas, 549.
This being the rule of law in this State, the first order of sale, having-become functus officio, can not be looked to or relied on to aid the alias order of sale, if that was defective to the extent of being void. The alias writ alone conferred authority, if any, to sell, and from that alone the officer could derive authority to sell and pass title to the purchaser. “A sheriff or constable has no authority to act under a writ directed to another sheriff or constable, and if he does so, a sale made by him is void.” 2 Freem. on Ex., sec. 291, and authorities there cited. If the alias order of sale in this case was directed to the sheriff of Collin Count)»-, then the sale made thereunder by the sheriff of Grayson County was a nullity, and conveyed no title to the purchaser. Witt v. Kaufman, 25 Texas Supp., 384; Bybee v. Ashby, 2 Gilm., 151; McKay v. Bank, 75 Texas, 181.
The appellee complains of the trial judge in charging the jury, that the undisputed testimony in this case showed that the alias order of sale was directed to the sheriff of Collin County, and the sale thereunder by the sheriff of Grayson County was a nullity, and did not pass title. We think this action of the court was error; when there is an issue raised by
the evidence, it is the province of the jury to pass upon it, and the court can not take that right from them.
In view of the fact that the alias order of sale was lost, the recital in the execution docket that the alias was issued and delivered to the sheriff of Grayson County raises a presumption that it conformed to the legal requirements, especially when it was shown that an original order of sale had previously issued, directed to the sheriff of Grayson County, and returned by him for want of time to sell, and said alias was issued thereon. The testimony to overcome this presumption was the testimony of witnesses Bledsoe and Head, who testified to having seen the alias order of sale among some papers of a case pending in the District Court of Gray-son County involving the land in controversy, and that it was directed to the sheriff of Collin County. The testimony of these witnesses was positive as to it being the alias in question. This was thirteen years after they had seen it. While their testimony was positive, the alias being lost, and the one they saw not coming from the proper custodjr, and thirteen years having elapsed since they had seen it, we think raises an issue of fact that should have been submitted to the jury for their determination. Smithwick v. Andrews, 24 Texas, 488; Schleicher v. Markward, 61 Texas, 99.
The appellant, by proper pleadings in the court below, asked, in the event the sale was avoided, to be subrogated to the rights of A. Rhine under the judgment of foreclosure. This plea was excepted to by the defendants, upon the ground that the said judgment was barred by limitation. The court sustained the exception, to which ruling proper exceptions were taken and the same assigned as error. We think this ruling of the court error.
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RAINEY, Associate Justice.
This is an action of trespass to try title, brought by appellant against appellees, to recover the land in controversy.
The facts are, that in 1859, A. Rhine, the then owner of the land, deeded same to W. M. Allen, part of the purchase money not being paid. In 1860, Rhine brought suit in Collin County for the unpaid purchase money, and a judgment of foreclosure was awarded him. An order of sale was issued, directed to the sheriff of Grayson County, which was returned for want of time to sell after seizing the land and advertising the same for sale. An alias order of sale was issued and delivered to the sheriff of Grayson County, and the land sold thereunder. A. Rhine became the purchaser, his bid being credited on the judgment, and the sheriff made him a deed. In 1865 A. Rhine, by warranty deed, conveyed the land to Isaac Rhine, who in turn, by warranty deed, conveyed same to appellant, who paid her separate money for same.
In 1874 W. M. Allen deeded the land to Joseph Bledsoe, and in 1882 Bledsoe deeded part of the land to W. T. Cutler, and Bledsoe and Cutler deeded all of the land to part of appellees.
Appellant made the executors of A. and I. Rhine parties, and prayed in the alternative, that if she could not recover the land, she be subrogated to the rights of A. Rhine under the foreclosure proceedings. Rhines’ executors plead to the jurisdiction of the court, on the ground that they lived in Collin County and the estates were administered there, which plea was sustained. Defendants filed exceptions to plaintiff’s plea for subrogation, and plead the statute of limitation of ten and two years as against the judgment. The exceptions were sustained, and upon the trial the court instructed a verdict for appellees, from which an appeal was taken.
The first proposition to be considered is, whether the sale of the land in controversy made by the sheriff of Grayson County under the alias order of sale, if the order of sale was directed to the sheriff of Collin County, is void, or voidable only.
Appellant claims that sale made under such circumstances is voidable only; that the first order of sale vested the sheriff of Grayson County with power to sell the land and convey a good title, and as he had proceeded to seize and advertise for sale, he had the right to sell, whether an alias order of sale issued or not, notwithstanding the return day of the first had expired. In support of this position he quotes various sections of Freeman on Executions.
It is true, that in section 58 of said work, Mr. Freeman, in speaking of the writ of venditioni exponas, says: “ The venditioni exponas was so frequently issued as to create the impression that it was a writ of authorization as well as of compulsion, and was necessary to enable the officer to proceed with the sale. Such was not the fact. It gave the officer no authority not previously possessed by him. Notwithstanding the return of the fieri facias, he could sell the property levied on as well without as with a venditioni exponas.” This seems to apply more strictly to personal property, as the officer by “levying the writ obtains a right of possession and a special property in the goods seized, which continues after the return day, and authorizes him to sell as effectually as if the original writ remained in full force.”
But some jurisdictions hold a different doctrine as to real estate. Mr. Freeman, in the same section, says: “A levy upon real estate gives no-special property, and no right of possession to the officer making the levy;, and hence it has been inferred that after the return day of the writ under which the levy was made, he occupies no official or other relation towards such property, and has no power to dispose of it and thereby make effectual the lien created by the levy. Where this view prevails, an exception exists to the general rule, that a venditioni exponas confers no-authority, and it is then necessary, after the return day of an execution, that this writ issue to empower the officer to sell real estate levied upon but not sold, and a sale without such writ is void.”
The Supreme Court of this State has held repeatedly, that a sale of land under execution made after the return day thereof is void, and no title-passes thereby. Hester v. Duprey, 46 Texas, 625; Mitchell v. Ireland, 54 Texas, 301; Cain v. Woodward, 74 Texas, 549.
This being the rule of law in this State, the first order of sale, having-become functus officio, can not be looked to or relied on to aid the alias order of sale, if that was defective to the extent of being void. The alias writ alone conferred authority, if any, to sell, and from that alone the officer could derive authority to sell and pass title to the purchaser. “A sheriff or constable has no authority to act under a writ directed to another sheriff or constable, and if he does so, a sale made by him is void.” 2 Freem. on Ex., sec. 291, and authorities there cited. If the alias order of sale in this case was directed to the sheriff of Collin Count)»-, then the sale made thereunder by the sheriff of Grayson County was a nullity, and conveyed no title to the purchaser. Witt v. Kaufman, 25 Texas Supp., 384; Bybee v. Ashby, 2 Gilm., 151; McKay v. Bank, 75 Texas, 181.
The appellee complains of the trial judge in charging the jury, that the undisputed testimony in this case showed that the alias order of sale was directed to the sheriff of Collin County, and the sale thereunder by the sheriff of Grayson County was a nullity, and did not pass title. We think this action of the court was error; when there is an issue raised by
the evidence, it is the province of the jury to pass upon it, and the court can not take that right from them.
In view of the fact that the alias order of sale was lost, the recital in the execution docket that the alias was issued and delivered to the sheriff of Grayson County raises a presumption that it conformed to the legal requirements, especially when it was shown that an original order of sale had previously issued, directed to the sheriff of Grayson County, and returned by him for want of time to sell, and said alias was issued thereon. The testimony to overcome this presumption was the testimony of witnesses Bledsoe and Head, who testified to having seen the alias order of sale among some papers of a case pending in the District Court of Gray-son County involving the land in controversy, and that it was directed to the sheriff of Collin County. The testimony of these witnesses was positive as to it being the alias in question. This was thirteen years after they had seen it. While their testimony was positive, the alias being lost, and the one they saw not coming from the proper custodjr, and thirteen years having elapsed since they had seen it, we think raises an issue of fact that should have been submitted to the jury for their determination. Smithwick v. Andrews, 24 Texas, 488; Schleicher v. Markward, 61 Texas, 99.
The appellant, by proper pleadings in the court below, asked, in the event the sale was avoided, to be subrogated to the rights of A. Rhine under the judgment of foreclosure. This plea was excepted to by the defendants, upon the ground that the said judgment was barred by limitation. The court sustained the exception, to which ruling proper exceptions were taken and the same assigned as error. We think this ruling of the court error. The land was sold under the judgment of foreclosure, and bid in by A. Rhine, the amount of his bid being credited on the order of sale. For about thirteen years Allen, the vendee of Rhine, acquiesced in this sale; no claim during that time was set up by him, nor did he pay the purchase money for the land, and it is probable that these conditions would have thus stood had not others raised the question. But be that as it may, no limitation would run under such circumstances until possession of the land was taken, and there is no pretense of adverse possession in this case sufficient to constitute a bar.
In order to avoid sales of like character of this, it is incumbent upon the party so seeking to pay the amount that is a charge upon the land. This has not been done by appellees. “ The rule is, that when the property is charged with the debt for which it is sold, then, independently of the legal proceedings under which it was sold, the purchase money must be restored before it can be recovered.” This rule was held to be the law in Howard v. North, 5 Texas, 290, and has been adhered to and reaffirmed ever since. Horan v. Wahrenberger, 9 Texas, 313; Bailey v. White, 13 Texas, 114; Teas v. McDonald, 13 Texas, 349; Sydnor v. Rob
erts, 13 Texas, 598; Brown v. Lane, 19 Texas, 203; Andrews v. Richardson, 21 Texas, 287; Morton v. Wellborn, 21 Texas, 772; Johnson v. Caldwell, 38 Texas, 218; Stone v. Darnell, 25 Texas Supp., 435; Burns v. Ledbetter, 56 Texas, 282; French v. Grenet, 57 Texas, 273; Walker v. Lawler, 45 Texas, 538; Mays v. Blanton, 67 Texas, 245; Railway v. Blakney, 73 Texas, 180; Jolly v. Stallings, 78 Texas, 605.
Delivered October 9, 1893.
It will be seen from the foregoing cases that it makes no difference whether the sale was void or voidable only. They hold to the broad doctrine, that when a party purchases land, before he can become the absolute owner thereof he must pay the purchase money therefor. Before defendants can hold the land sued for, they must pay off and discharge the debt with which it is charged, which is the amount bid by A. Rhine at the foreclosure sale and credited on the alias order of sale, with interest at the rate specified in said judgment of foreclosure.
Rhines’ executors were proper and necessary parties, and the court erred in sustaining their plea to the jurisdiction of the court.
For the errors indicated, the judgment of the District Court is reversed and this cause remanded for a new trial.
Reversed and remanded.
Motion for rehearing overruled November 1, 1893.