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summoning the defendant to appear and show lowing cases: White v. Jones, 67 Tex. 640, cause why execution should not be issued, but 4 S. W. 161; Hudson v. Jurnigan, 39 Tex. no execution shall be issued upon any such 589; Logan v. Pierce, 66 Tex. 126, 18 S. W. judgment, until a scire facias or other notice 343; Dancy v. Stricklinge, 15 Tex. 557, 560, 65 shall have been issued and served in the usual

Am. Dec. 179; Bayne v. Garrett, 17 Tex. way, upon the defendant or defendants."

335; Guilford v. Love, 49 Tex. 738; Gallup [8] 5. The records of the district court do v. Flood, 46 Tex. Civ. App. 644, 103 S. W. not disclose the issuance of "scire facias or 427; Ludtke v. Bankers' Trust Co. (Tex. other notice." Nor is there found any judg. Civ. App.) 251 S. W. 602, 605. ment in cause 62, Geo. Tenille v. Zeno Phil [11] Much that has been said applies to lips' Heirs, directing its issuance, other than the contention that the execution was inthe docket notation dissolving the injunc- valid becarise issued in the name of Zeno tion theretofore issued against Zeno Phil- Phillips' heirs. It is earnestly contended lips' heirs, and which was served on Hill, that it was issued in this way because of the administrator of that succession. But che notation of the style and number on the this does not void the execution and sale. execution docket and in the sheriff's deed. It affirmatively appears that George Tenille But it by no means follows that the execu. had his day in court, and unsuccessfully tion ran in that exact style. Clerks, then attacked an execution on this judgment upon as now, used similar abbreviations in their the very ground of lack of notice of its is dockets, but they are simply notations for

It would be altogether incorrect to identification in his own records, and may say that his voluntary appearance did not be and usually are elaborated in the writs obviate the necessity of issuing sçire facias. themselves. In the same docket the clerk And under the act quoted a judgment or or uses the abbreviations "et al.," "& Co.” Can der directing the issuance of an execution it be seriously contended that we must was unnecessary. If, in response to scire therefore find and hold that the writs to facias or other notice, or by voluntary ap- which these notations applied ran in exactly pearance, Tenille showed no grounds for re- similar fashion? To the contrary, under the fusing its issuance, it became the duty of the decisions collated in the foregoing paraclerk to issue successive writs of execution graph, we are enjoined to indulge the preas a matter of course.

sumption of omnia rite acta, rather then in[9, 10] 6. Should it be necessary, however, fer that the clerk performed an invalid and a proper judgment directing the issuance of nugatory act. the execution can well be presumed. The [12] What merit the argument may have, docket recital shows that the court took plaintiffs are not now in a position to raise final action in dissolving the previously it. They are privies by inheritance of Geo. granted injunction. Thereafter the clerk is- Tenille. The defendants Hogg heirs and sued an execution. For nearly a century the the Texas Company are privies by purchase. title emanating thereunder has stood un- The judgment rendered by the district court challenged; for more than a half century of the Republic in 1838, to which their antaxes have been paid and acts of ownership, cestor was a party, was a final one, and, practically unbroken, have been exercised ; adjudicated adversely the issues raised by the time inquired about was one of confu- Tenille. Bryan v. Knight, 1 Tex. 180–184; sion and loose practice. In such a case Austin v. Townes, 10 Tex. 29; Durant v. every reasonable presumption will be in- Essex Co., 7 Wall. 107, 19 L. Ed. 156. dulged in support of the ancient title. And One of these very issues was the right of it must be borne in mind that the mere ab- Zeno Phillips' heirs to such execution. Unsence of orders, judgments, and the like der a rule of law so fundamental and unifrom these ancient records does not militate versal as to need no citation, this question against the presumption. Persons attacking is res adjudicata. Plaintiffs cannot, after these transactions are put to the duty of nearly a century, relitigate an issue adproving that there was not compliance with | judged against their ancestor and privy in the law, though it involves a negative. Even title. though it be a rebuttable presumption, the The facts seem to us conclusive that the mere probability arising from the absence judgment was rendered; and that it passed, of the order or judgment does not rebut it. in response to statutes of the Republic, to At most, "when applied to these ancient the district court, and it became, by reason proceedings [it] raises but a remote pre- of such statutes, for all practical purposes, a sumption, which we hold to be subordinate judgment of that court. Apparently it was to the violent legal presumption that the given the same number and style as the injudge before whom the proceedings were junction suit filed by Tenille; or both, as had did his duty." Baker v. Coe, 20 Tex. would seem reasonable, were carried under 429.

the same file number. The first execution of As applicable to many features of the October 21, 1837, certainly referred to the case at bar, and illustrating the various ap- original alcalde judgment which had very plications of this principle, we cite the fol- evidently been passed to the district court.

(273 S.W.) The style is the same; the principal is identi- takes a title which is valid until the sale is set cal in amount; the item of "primary costs aside.” Owen v. City of Navasota, 44 Tex. 4.62” points unmistakably to the Mexican 522, and cases cited. origin of the judgment to which this docket entry refers. No number is given in the

When Underwood purchased at the subsecolumn of the docket reserved for that pur- quent sale, the record would have disclosed a pose. Oath of the sheriff is made as to subsisting judgment, because the 12-month loss of this execution and a new one issued bond by its terms, as hereinafter discussed, May 2, 1838, which recites levy but that sale became such a judgment; it operated as a was not complied with. Under the next exe

lien on the land from the date of its execucution there was a sale to Geo. Tenille for tion, and had been placed there by the exwhich he gave his 12-month bond. The exe

ecution debtor. Certainly there would be cution docket entries in this instance refer nothing in the record to put him on notice unmistakably, we think, to the same judg- of any infirmity by payment or otherwise in ment. The names of the parties are identi- | this transaction, and it is undisputed by the cal, save the word "beirs" is written after sheriff's recitals that Underwood paid value Zeno Phillips' name;

the amount of the at the time of his sale. We believe this is judgment is identical. The costs have in sufficient to characterize bim as an innocent creased, the two previous executions account- | purchaser and to make the sale good under ing for that; and in the number column is the authority of Owen v. City of Navasota, the number 62. We cannot conceive any supra, but whether it did or no Tenille is facts here which would justify a finding that estopped to assert the contrary,

Rorer on this meant any other judgment than that of Judicial Sales (24 Ed.) par, 471; Cayce v. the alcalde, now become a part of the dis- Curtis, Dallam, Dig. 403; Austin v. Townes, trict court's archives.

10 Tex. 24; Howard v. North, 5 Tex. 31C, Similarly, through the execution of No-51 Am. Dec. 769. vember 23, 1840, which was returned not

The case of Townes v. Harris, supra, desold for want of bidders, to the execution of cides that the 12-month bond did not operate April 21, 1842, referred to by the sheriff in from the date of its execution as a lien on his deed, and under which he sold to Under the property of one of the sureties thereon, wood, the entries of this ancient execution and that, therefore, a purchaser from the docket point unerringly to the fact that surety took a good title as against a writ these executions are issued on the 12-month of execution issued upon the subsequent forbond given by Tenille. Thus the amount of feiture of the bond. This is the decision, principal, interest, and costs in 1839 would and all that was necessary to the decision. be $337, and this is the amount given in The court remarks, by way of dicta, that if both docket entries. Moreover, that of April the execution was void, the 12-month bond, 21, 1842, specifically states in the column to which Waller was security given at sale showing "Amount of Execution," "amt. of thereunder, was also void. Without elaborabond 337.97."

tion of the many differences between the [13] 8. Under an execution issuing out of rights and liabilities of a surety and those the district court 'on the transferred al- of the principal obligor, who was at the calde's judgment, the land in question was

same time the judgment debtor and fully purchased by George Tenille, for which he cognizant of whatever infirmities existed, or gave his 12-month bond, and under an execu- pointing out that the instrument might be tion issuing on this bond Ammon Underwood void as to the former and valid, or at most purchased. Thus, Tenille, the judgment voidable, as to the latter, it is sufficient to debtor, became the purchaser at execution say that well settled legal presumptions and sale. By this action he estopped himself the dim facts of this ancient transaction upon the plainest equitable principles from alike repel any idea that the execution unattacking the title he had thus acquired for der which George Tenille gave his 12-month any defects or irregularities occurring prior

bond was void. to such sale. Pope v. Davenport, 52 Tex.

(14, 15] 9. The 12-month bond was a crea215; Cornelius v. Burford, 28 Tex. 208, 91 ture of statute; it became effective January Am. Dec. 309; 16 Cyc. 765, and cases cited. 26, 1839, and is found in article 1277, Hart. It cut him off, we think, from being heard to ley's Digest. This provided, in brief, that say that there were irregularities in the ex- the bond, with good and sufficient security, ecution, levy, and sale to himself, and it also should be made payable to the plaintiff and precludes him from setting up the payment returned to the clerk's office from which the of the judgment.

With reference to this execution had issued, “and shall have the last, it is:

force and effect of a judgment against the

principal and securities; and upon the ma"The general rule is believed to be that a purchaser at execution sale, who looks to the turity of the bond, if it shall not be puncrecord and finds there a valid subsisting judg. tually paid, execution shall issue thereon ment authorizing the execution under which the against the principal and securities," and officer proceeds, and who in good faith buys, contained further provisions as to levy and pays the purchase money and receives a deed, / sale in order to pay the amount of the bond.


It is settled that this bond had a double strict grammarians, and we think they used character, first, as an obligation known to the words “near Columbia" in the relative the Spanish civil law, and second, it was a sense of "nearest Columbia." summary statutory judgment, and had by [17] 11. This corner was in fact the one force of the statute "all the force and effect settled upon under the deed, and it was laid and incidents of any other judgment of a out in a square. Plaintiff contends that court of competent jurisdiction" (Austin v. there is no authority in this state under Townes, 10 Tex. 24), and it continued to such a description for laying land off in a have these characteristics after the adop- square, and it is true that Judge Williams tion of the common law in Texas (Foster v. seems to question this doctrine in Edrington Champlin, 29 Tex. 28). It is also held such V. Hermann, 97 Tex. 193, 77 S. W. 408, a 12-month bond is, in effect, a consent judg- though he states that the Courts of Civil ment. For the various cases discussing the Appeals have held it as a matter of law, and incidents of such bonds, see Cayce v. Curtis, expressly, declines to rule definitely upon the Dallam, Dig. p. 403; Bryan v. Knight, 1 Tex. question. Under other jurisdictions, the 183; Townes v. Harris, 13 Tex. 514; Janes great weight of authority is that such a v. Reynolds, 2 Tex. 253; Austin v. Townes, description will require the land to be laid 10 Tex. 24. We think, considering the na- off in the form of a square from the corner ture of this summary judgment, and the fact as a base. Edrington v. Hermann, supra, and that it was in effect a consent judgment, it cases there cited; Wingo v. Jones (Tex. Civ. would conclude or waive any preceding er- App.) 59 S. W. 916; Day v. Needham, 2 Tex.

or defects which might exist in the Civ. App. 680, 22 S. W. 103. The Act of transactions, When Tenille's land was up 1839, Congress of the Republic, g 15 (Laws for execution sale, if defects existed, his in- 1839, p. 155), required the sheriff to levy as sistence upon them in court was his remedy. on wild land, and to "take off so much of He chose instead to buy in his property, and the land at one corner of the survey" sufi. to enter into à consent judgment for the cient to satisfy the execution. The only reaamount therefor. Having made this deci- sonable meaning to be given this statute, it sion, others having acted upon it and it seems to us, is that the land shall be taken having been acquiesced in for 85 years, we off in the form of a square. To take it off in know of no rule of law which would permit a triangle, or a parrow rectangle, would his heirs and privies in title to change their do violence to common understanding; and position and raise against it questions their might greatly increase or decrease the inancestor had waived.

trinsic value of the land. We think that the [16] 10. The description in the sheriff's land was properly taken in a square, as a deed, reading "1,000 acres of land off the matter of law. lower corner of George Tennell's league of In addition thereto, the evidence disclosed land above and near the town of Columbia, that George Tenille in his lifetime had sold and known as a part of the headright of all of the Tenille league other than the UnGeorge Tennell,” is attacked as not describ- derwood purchases, except for a small tract, ing the land in controversy, and as having and, upon the whole, we conclude that the ambiguity in its description. The Tenille description, in the light of the statute then league lines run north and south and east in force, and of the extrinsic evidence, is and west. The town of West Columbia is good. south of and a little east of the southeast If the proceedings under the alcalde's corner of the league. It was in evidence judgment and subsequent execution and sale that the southeast corner is the lower cor- are, as we hold, valid, it follows that the ner with reference to the course of the Bra- action of the lower court in directing a verzos river; that is to say, it is farthest dict must be sustained, but if we consider, downstream. It was also shown that a topo- for the sake of argument, that this be not graphical survey disclosed that the south- true, the action of the court is sustained east corner was the lowest in elevation on upon another proposition, the league, so that whether "lower" be con Tom Tenille was the devisee under the strued to mean south or downstream, or low- will of George C. Tenille. The record shows er in elevation, each would indicate the that the defendant Hogg heirs and the Texsoutheast corner of the Tenille league. This as Company acquired Tom Tenille's title, corner is also nearest and above the town for we see no facts which would justify a of West Columbia. We think, therefore, the finding that Liggett was an innocent purfacts clearly identify this corner, and we chaser when he acquired the deed subsedecline to put the construction on the lan- quent in point of time from Tom Tenille. guage contended for by plaintiff. It very ap- If, therefore, the will of George C. Tenille parently to us refers to the land conveyed, was validly probated, whatever title reand is not a description of the whole league. | mained in George Tenille is now vested in This last would have been futile, because the defendants Hogg heirs and the Texas Tenille owned only the one league in the Company. county; and the early Texans were rarely This will and its probate must be decided



(273 S.W.) by the Probate Act of 1870 (Laws 1870, c. / shown, and subsequent orders show that the 81), and the amendment of 1873, (Laws 1873, executor renounced; and (2) he did not orc. 97), by which probate jurisdiction was der himself to record the proceedings, but vested in the district court, and to a limit- this requirement could have no application ed extent in the clerk of that court.

when the clerk himself probated the will. [18] 12. Numerous attacks are made on He simply recorded it. the constitutionality of the act of 1873, in [21] 15. An examination of the cases dealvesting the district clerk with probate au- ing with collateral attacks various thority in vacation, and upon his jurisdic. ancient probate orders, from those under the tion. It is not perceived how conferring this Probate Act of 1840, to the present, shows: power could be unconstitutional, when the (1) That in construing such ancient orders Constitution of 1869 expressly authorized the where they are imperfect or vague, "controlLegislature so to do. Nor does the fact that ling effect should be given to the intention of the Act of 1873 did not set up a complete the court as it may be reasonably gathersystem for his government impair the powed from the entire record of the administraers given the clerk. The act of 1870 did pre- tion" (McCardell y. Lea, 111 Tex. 387, 235 S. scribe probate duties and powers in great de- W. 520); and (2) that in circumstances such tail, and the act of 1873 provided that the as prevail in this case a liberal construction clerk should be governed by the provisions of of such orders is to be adopted to uphold the act of 1870 so far as the saine were ap- titles emanating thereunder (Baxter plicable. The constitutionality of this act Lynch, 4 Tex, 431; Denison v. Ingram, Daland the jurisdiction of the clerk to probate lam, Dig. 520; Cruse v. O'Gwin, 48 Tex. Civ. Wills in vacation are no longer open questions App. 48, 106 S. W. 759; Neill v. Cody, 26 in this state. Fuentes v. McDonald, 85 Tex. Tex. 286; Stark v. Osborn, 221 F. 568, 137 135, 20 S. W. 43; Salmon v. Huff, 9 Tex. Civ. C. C. A. 259; Moody v. Butler, 63 Tex. 212; App. 164, 28 S. W. 1044.

Teague v. Swasey, 46 Tex. Civ. App. 151, 102 [19] 13. The lower court properly found S. W. 460; Simmons v. Blanchard, 46 Tex. and held that the will of Geo. C. Tenille was 269; Moody y. Butler, 63 Tex. 212. probated. The pertinent parts of the act of 16. At common law, the probate of a will in 1870 under which the clerk acted, "so far as common form was informal, and, in a measthey are applicable,” may be thus summariz- ure, interlocutory, because it could be reviewed: Section 14 provided for 10 days' post- ed in a number of ways, and probate in solemn ing; section 78, that the testimony of sub- form required. The act of 1873, permitting scribing witnesses shall be reduced to writ- the clerk to probate in vacation in the abing at that time and be signed by them. sence of a contest, was quite analogous to Section 79, "when the will is proved as pro- probate at common law in common form. vided in sections seventy-four, seventy-five, This was subject to review at the next term seventy-six and seventy-eight (in the instant of court, or proponents might have to prove case is was so proved], the court shall make up-as in solemn form-by a contest filed an order to that effect, stating upon what within four years. It was not a formal protestimony such order is made"; section 80, teeding. It required no judgment, only an "The testimony upon which it is determined "order," a less formal thing. Halbert v. Althat a will is proved, both for and against, ford (Tex. Sup.) 16 S. W. 815. An "order to shall be recorded with the will;" section 86; that effect” prevents the inference that any "The order in such case (which is the same set form of words should be necessary. In mentioned in section seventy-nine) shall be re Wiley's Estate, 187 Pa. 82, 40 A. 981, 67 that the will is proved and ordered to be re- Am. St. Rep. 569. corded, and that the executor, naming him, In view of this and of the other facts and receive letters testamentary

upon recitals of the record which we have set out, filing bond," etc.

the age of the transaction, the fact that the [20] 14. The clerk's order of September devisees took under the will and treated it 2, 1874, recited all jurisdictional facts, and as a probated paper for nearly 50 years, and this is conclusive against a collateral at- guided by the long line of decisions, we overtack. Salmon v. Huff, supra. He states that rule all assignments directed to the action of the instrument is "probate of the will of the lower court in this regard. George C. Tenille, deceased.” He recites that We consider the instrument relied upon Amanda J. Tenille had petitioned that same sufficient to probate the will of Geo. C. Tenille; be probated. It may be observed that he but, if this were .not so, in view of the does not state that she prayed for O'Connor's evidence as to loose practice in recording appointment as executor. He was her coun- file papers, the destruction of many records, sel in this case, and had evidently already the fact that the court administered on the refused to act as executor. He follows every will as a probated instrument over a period requirement of the act in making an order of 7 years, and the other facts recited in the “to that effect” after the will was proved, preceding statement herein, we would be inwith the exception (1) he did not appoint clined to hold that a proper judgment admitan executor, but no application for this is ting it to probate could well be presumed.


Authorities supra, par. - Deeming the or- strument, but this is true because the acder shown sufficient, however, we find it un- knowledgment of a man or a single woman necessary to so hold.

is in no sense a part of the conveyance. It [22] 17. Turning now to the case made be- is merely a verification for the record, and tween the cross-defendants McFarland heirs for the purposes of evidence of the fact that and the defendants Hogg heirs and the Tex- they have conveyed. But, in the case of a as Company, it appears that the court ad- married woman, the acknowledgment is not mitted in evidence the deed from Mrs. Mc-only that which imparts verity to her act, Farland and her sisters to Mrs. Bell, the it is also a vital and essential part of her acknowledgment to which was taken by one conveyance. Without it there is no conveyWilliams, who was a party grantor in that ance. The curative act of 1907 dealt with instrument, but the lower court also held defectively acknowledged instruments from that this instrument was ineffectual to pass the standpoint of their value as evidence, the title of the married women who were and was in no sense an attempt on the part grantors therein. By cross-assignment de of the Legislature to validate such defective fendants Hogg heirs and Texas Company as instruments conveyances. Holland sailed this ruling. The evidence is not clear Votaw, 62 Tex. Civ. App. 91, 130 S. W. 882; as to the position occupied by Williams at Holland v. Votaw, 103 Tex. 534, 131 S. W. the time of this conveyance. He testifies 406; Delay v. Truitt (Tex. Civ. App.) 182 that he had no interest in the land conveyed, S. W. 732; Klumpp v. Stanley, 52 Tex. Civ. yet he also testifies that he received a part App. 239, 113 S. W. 602; March v. Spivy of the consideration, and while it is true (Tex. Civ. App.) 133 S. W. 528. There are that he had previously made a conveyance many outside authorities cited by counsel of his interest to Mrs. McFarland, yet this which seem to bold contra, and the case of conveyance had not been manually delivered, Downs v. Blount, 170 F. 15, 95 C. C. A. 289, but had remained in his safe and was not 31 L. R. A. (N. S.) 1076, announces a conrecorded until some time after the transac-trary conclusion, but these cases deal, except tion in question. But whether he were in for the last one, with statutes whose word. fact interested or not, we think it a safe ing differs from that of ours. For example, and salutary rule, and one established in the Arkansas validating act provides that this state, that a person who identifies him- instruments on 'the record, but defectively self with the transaction, by placing his acknowledged, "shall be held valid to pass name in the face of an instrument as an the estate which such conveyances purport active and essential party thereto, is not to transfer.” If our Legislature had used competent to give it authenticity as an offi- this or similar expression, evincing an intent

Rothschild v. Daugher, 85 Tex. 332, to validate the conveyance, we would be con20 S. W. 142, 16 L. R. A. 719, 34 Am. St. fronted with a different question, but the Rep. 811; Sample v. Irwin, 45 Tex. 568; statute in unmistakable terms limits its operBrown V. Moore, 38 Tex. 648; Silcock v. ation to the evidentiary character of deBaker, 25 Tex. Civ. App. 508, 61 S. W. 939; fective acknowledgments. Such we think is Titus v. Johnson, 50 Tex, 236; Belcher v. now the settled rule of decision. Holland v. Taylor (Tex. Com. App.) 212 S. W. 647. Votaw, supra, and other similar cases. There

No case precisely like the one at bar has was no error in the ruling of the lower court been decided in this state, but we think the on this deed. facts bring this case within the principles an Cross-defendants McFarland attacked the nounced in the above decisions, and we are finding of the jury on the question of five controlled thereby, though the weight of au- and ten years' limitation by more than 50 thority in other jurisdictions is seemingly to assignments of error. It is manifestly inathe effect that a cograntor, though a party possible to give detailed consideration in this to the instrument, is competent to take the opinion to each of the questions raised. We acknowledgment of th other parties gran- find that the court correctly charged the jury tor. Greve v. Echo Oil Co., 8 Cal. App. 275, on both the five and ten year statutes, and 96 P. 907; Nichols 'v. Howson, 94 Ark. 241, the evidence is abundant, if not overwhelm126 S. W. 830; Bank v. Hove, 45 Minn. 40, ing, to sustain the verdict of the jury with · 47 N. W. 450; Austin v. Southern Co., 122 reference to its finding on the ten-year Ga. 439, 50 S. E. 385; Schwartz v. Wood- period. ruff, 132 Mich. 513, 93 N. W. 1067; Dussaume [24] We think the lower court was in error v. Burnett, 5 Iowa, 97.

in submitting to the jury the question of [23] Nor does the Act of 1907 (Laws 1907, five years' limitation only from July 27, 1910, C. 165), with reference to defective acknowl- but no injury resulted thereby to cross-deedgments, cure the invalidity of this instru- fendants McFarland et al. The lower court ment as a conveyance. There are numerous was apparently of the opinion that the deed cases under this curative statute with ref- from the Hogg heirs to the Varner Oil Comerence to single acknowledgments, and it pany, the stock of which the Hogg heirs ownis universally held that in such cases the act ed entirely, broke the possession of the completely removes any objection to the in- | Hoggs. This deed was made in May, 1907,


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