Carter v. Munzesheimer

LEVY, J. (after stating the facts as above). The precise point made by the appellants is that the officer’s return showed bn its face that “no money” was received by the officer on the bid made’ at the sale, and, there being no evidence to the contrary, “there was therefore,” as a legal consequence, “no valid sale, and the constable had no authority to execute the deed to the land sold.” Stated in other words, the purehaser’ss title did not become perfect until and unless his bid was accepted and the payment made, although there was a valid judgment, execution, and sale; and the burden of proving this fact was upon the purchaser. Manifestly, the title claimed by the purchaser was' not legally effective if there was failure of compliance with the bid, for the law is well settled that the bidder acquires no title to the property purchased before and until the moment of payment of the purchase price bid. The “bid and payment of the purchase money constitute the purchaser’s right, and the sheriff’s deed is only evidence of right.” Fleming v. Powell, 2 Tex. 225; Miller v. Alexander, 8 Tex. 36; Donnebaum v. Tinsley, 54 Tex. 365; Logan v. Pierce, 66 Tex. 126, 18 S. W. 343; Higgins v. Bordages (Tex. Civ. App.) 28 S. W. 351. As the record appears, the appellee offered and read in evidence the execution and the return and the officer’s deed. He relied upon these instruments, and he offered no additional evidence in- explanation of the difference between the recitals of the return and the deed. The return states the facts to be that the lot was “sold” to appellee Munzesheimer “for the sum of five dollars,” and that “no money” was “turned over to me.” The officer’s deed made under the same sale recites the facts to be that the lot “was struck off to Max Munzesheimer for the sum of twenty-eight and 38/ioo dollars, his being the highest and best bid therefor,” and that he, as the purchaser, made “payment to me. of the' said sum of twenty-eight and ss/ioo dollars, the receipt of which is hereby acknowledged.” If it be true, as recited in the officer’s deed, that the purchaser made “payment” of the bid to the officer, “the receipt of which is hereby acknowledged,” then the purchaser has made proof of the payment of the bid, entitling him to a judgment in his favor. If, however, it be true that “no money” was “paid to me,” as recited'in the officer’s return, then there would affirmatively appear no legal sale of the property, and a want of any title in the purchaser. For the officer is not authorized to “execute and deliver to the purchaser a conveyance,” except in the event “a sale has been made and the terms thereof complied with.” Article 3765, Rev. Stat. “When the terms of , the sale shall not be complied with by the bidder,” the officer, as expressly provided, “shall proceed, to sell the property again on the same day, if there be sufficient time; but, if not, he shall readver-tise and sell the same as in the first instance.” Article 3772, Rev. Stat. It is in case of “the collection of the money” that “the execution shall be returned forthwith” after advertisement and sale. Article 3779, Iiev. Stat. In the circumstances, without further explanation, there is no room for the court to indulge a presumption and to hold there is prima facie evidence that the officer discharged his duties and collected the money, The recitals in the two instruments, apparently, are contrary and are contradictory, and one of them at least is without basis of fact. The effect of it was to impose upon the appellee the burden of showing circumstances legally sufficient to aid and authorize a presumption of the payment of the bid. For so long as the return stood in evidence, as evidence offered by the appellee, the recited fact would have to be regarded as correct, and could not be disregarded, unless otherwise explained by additional circumstances legally competent to justify drawing different conclusions. The doubt produced, as to whether or not the officer did discharge his duty and collect the money, would have tó be removed. The testimony as given by the officer is of little evidentiary value. Ordinarily, as held, as the return is made after the sale, if it be incorrect and. in contradiction of the deed, the recitals in the deed will control, and the return cannot affect the purchaser’s title already perfected by the bid and payment of the same. Holmes v. Buckner, 67 Tex. 107, 2 S. W. 452, and authorities cited; King v. Duke et al. (Tex. Civ. App.) 31 S. W. 335. But this rule has application to a mere irregularity or defective execution of a valid power rendering the performance voidable but not void. The rule of law is to *280 the contrary where the return states facts which show such departure from the requirements of law as is sufficient to invalidate the act of the officer. As stated in Howard v. North, 5 Tex. 290, 51 Am. Dec. 769: “Where the return does not state facts to the contrary, the presumption would be that the officer had not exceeded his authority. The return in this case is defective in not stating the place, nor with sufficient certainty the time of the sale, but it states a fact which would have enabled the plaintiffs to prove with facility that the sale did not take place on the first Tuesday of the month, if such had been the truth. The sheriff certifies that the sale took place on June 3, 1845. If this be not the first Tuesday of that month the fact should have been proved by the plaintiffs; and if established, it would have invalidated the title of the purchaser. This objection is of a different character from that of a want of notice of sale. The former is an objection to "a want of power in the officer; the latter to an irregular exercise of legitimate authority. Eor the latter the officer may be punished, but the title of the purchaser cannot be affected. But where the time and, place of a public sale are prescribed the sheriff has no authority to sell at any other time or place, and should he dcr so his actp are not merely irregular, but void, and can confer no title. This distinction can operate no hardship on purchasers or destruction of rights of innocent parties.” See, also, Grace v. Garnett, 38 Tex. 157; Sinclair v. Stanley, 64 Tex. 67; Moody v. Moeller, 72 Tex. 638, 10 S. W. 727, 13 Am. St. Rep. 839. The surrounding circumstances and collateral facts, when offered in evidence, may show that the officer intended to use the words, “Said no money turned over to me” in the particular sense and meaning merely that the money was not handed to him but to some other authorized person. If so, the return would be consistent with the deed. We therefore conclude, that 'as there is insufficient evidence in the record to warrant the judgment in favor of appellee, that it should be reversed and the cause remanded.