Sydnor v. Roberts

Wheeler, J. The principal question in this case, and the only one which it is material to consider, as that will dispose of the case on the merits, is, whether the defendants have acquired a good title under the Sheriff’s deed. Several objections are urged to the validity of the title; and first, it is objected that the execution was issued illegally to the county of Galveston upon the judgments rendered in Nacogdoches county, because there had been no return of nulla bona upon the prior executions ; by which alone it is insisted, it could have been legally ascertained that the defendant in execution had not property in the county where the judgment was rendered sufficient to satisfy the execution. It is true, there is no such return, but upon the first execution the return showed that the defendants refused to point out property; and upon the second, that the defendants’ attorney pointed out, and a levy was made on “ all the right, title and interest that John Durst has in and to his plantation and residence and that it was not sold for the want of bidders; no one, it is to be presumed, wishing to purchase John Durst’s plantation and residence, under an execution upon a judgment against Roberts and Phillips. It would not seem an unreasonable conclusion from two such returns, thus showing that the defend — 615 — ants had twice had the opportunity afforded them of pointing out property of their own to satisfy the execution, and had not only failed to do so, but had pointed out the property of another, that they had not property within the county subject to the execution. It would seem to afford quite as strong prima facie evidence of the fact as a simple return of nulla bona; and, it is to be observed that the statute does not prescribe what evidence shall be received as sufficient. (Hart. Dig. Art. 1336.) Such a return doubtless would be so deemed : but it does not follow that nothing else would. And it would certainly be going very far, and farther I apprehend than any Court has hitherto gone, to hold that no other evidence could be received, and that the absence of a formal return of nulla bona would invalidate and defeat the title of the purchaser under a subsequent execution, who had no concern with, and is not presumed to know the returns which may have been made or omitted to be made, upon the previous executions • but who is required to look alone to the authority conferred on the officer by the judgment and execution under which the sale is made. Let it be admitted that it was not strictly regular to issue the execution to the county of Galveston, without first having a return of nulla bona in the county of Nacogdoches ; it surely cannot be intended seriously to insist that the execution so issued is a nullity, so that the officer cannot justify, or the purchaser acquire a title under it. That would indeed be a doctrine fraught with serious consequences. It would place the Sheriff in an extremely perilous situation. If he failed to execute the process he would be liable to the plaintiff in execution; and if he proceeded to execute it, he and all concerned would be tresspassers. A Sheriff could not safely execute or decline to execute process sent from another county; nor could any one safely purchase property exposed to sale under execution, without first going to the county whence the execution issued and inspecting the records to see what returns had been made upon previous executions; and judgment debtors would be ruined by the sacrifice of their pro — 616 — perty. It appeared upon the face of the execution in this case, that previous executions had been issued to the county of Nacogdoches. . The process was regular upon its face. The Sheriff was bound to execute- it; and he and all others concerned had the right to suppose that the proceedings upon the former executions were regular, and such as authorized the issuing of the execution to his county ; nor had he any right to inquire into the regularity of the judgment and proceedings in the case antecedent to the execution to him directed. The very elaborate and ingenious argument of counsel for the appellee proceeds upon the assumption that it is the return of nulla Iona which confers on the Clerk the authority to issue the execution ; whereas it is from the judgment that he derives his power. It is that which confers on him the authority as the ministerial officer of the law, to issue execution. If he should issue execution without a subsisting judgment conferring on him the authority, the execution would be a nullity, and all acts done under it would be void. The Sheriff could not justify under it; but he and all others concerned in its execution would be trespassers. But there is a marked distinction between that which confers the power to do a certain act and the rules which direct and regulate the mode of its exercise. If the former be wanting, the act done is a nullity, and is to be taken as if nothing had been done ; but if the latter be not strictly pursued, the acts done will not necessarily be void ; or if void as to some persons and purposes, they will not necessarily be so as to all persons and for all purposes; but only as to the person who may have the right to avoid them, and will exercise that right in the proper manner, and in proper time. This distinction was recognized by this Court in the case of Howard v. North, (5 Tex. R. 306,) where it was said, “A clear distinction is recognized to exist between a sale “ without authority, and one where there is an authority not “ strictly pursued ; in the former case the sale is void; in the “latter the title will pass, and the party injured by the irregu“lar acts of the officer will be left to his remedy against him.” — 617 — And again “ The distinction between acts done by an officer “ without authority, and those done or omitted, in its irregular “ exercise, has been previously stated. The former are nulli- “ ties, and confer no right; the latter do not affect titles ac- “ quired under the acts of the officer, unless the purchaser be “ implicated.” (Id. 315.) The sending the execution out of the county in this case without there having been a return of nidia bona upon the executions issued to the county where the judgment was rendered, was, at most, an irregularity; and not of a character to invalidate the title of a bona fide purchaser ; as will be apparent by a reference to authorities. In Coleman v. Trabue, (2 Bibb, 518,) it was objected to the title of the plaintiff in an action of ejectment, that the execution, under which he derived his title through a purchaser at the Sheriff’s sale, had been irregularly issued out of the county where the judgment was rendered. But the Court said, “ Whether it was irregular or not we do not deem it important “ in the present case. For even admitting the irregularity, “th q fieri faoias was a good authority to the Sheriff to sell, “ until reversed or set aside. And when a Sheriff sells to a “ stranger, under & fieri faoias issued on a judgment, which is “ afterwards reversed, the defendant shall not be restored to “ the property sold, but to the money for which it sold (2 Bac. “ Abr. 740, 8 Co. 96; Cro. J. 246.) And, so the writ be not “ void, it is a good justification, however irregular, and the “ purchaser will gain a title under the Sheriff. (2 Tidd. Prac. “ 936.) The fieri faoias undoubtedly is not void ; at most, “ it is voidable.” And the title of the purchaser was upheld. And in the case of Cox v. Nelson, (1 Mon. 94,) it was held that there being cases in which an execution may go out of the county where the judgment was rendered, when a Sheriff receives an execution from another county, it is not his duty to inquire whether the case existed, which autorized it to issue or not; but he is to presume it regular and proceed to execute it. Id. 96, 7 J. J. Marsh. 148.) In the case of Jackson v. Rollins, (16 Johns. R. 537,) in — 618 — delivering the unanimous opinion of the Court of Errors of Hew York, affirming the judgment of the Supreme Court, and considering the question whether, where execution had issued after a year and a day without the judgment having been regularly revived by scire facias, the sale under it would be void, the Chancellor said, “ The better opinion is, that if ex- “ edition had been issued without any scire facias, the sale “ under it would not have been void. It might have been “ voidable, and liable to have been set aside, by the Supreme “ Court, upon motion as irregular, or by this Court upon error “ as erroneous; but until that was done the title would have “stood. This question of irregularity or error, never can be “ discussed collaterally in another suit. It is not a point in “ issue in this action of ejectment. We are only to look to “ the judgment and cannot question its regularity. Thus, in “ the case of Patrick v. Johnson, (3 Lev. 403, 2 Lutw. 925,) “ an action was brought for false imprisonment, and the de- “ fendant justified under a judgment of the 1st year of Wil- “ liam and Mary, and ca. sa., of the 4th of William and Mary. “ To this plea, the plaintiff replied, that the execution had “ issued after a year and a day from the judgment, without “being revived by scire facias; and, on demurrer, the Court “ resolved, that the execution sued after the year, was not “ void, but only voidable by writ of error; and until it be re- “ versed, it is a good justification. This case was decided in “ the C. B., as early as the 6th of William and Mary, and it “ has since been quoted as good law. How, if a ca. sa. issued “ after a year and a day will justify the Sheriff in taking the “ body of a defendant, it will equally justify the Sheriff in sell- “ ing his land; and the purchaser may justify under such a “ title, at least until the judgment and execution be set aside “ for irregularity, or reversed by writ of error. It appears to “ me that the conclusion from this authority is irresistible. “ The same doctrine is taught in many other cases. Thus, in “ Burke’s case, (Cro. Eliz. 188,) and Shurley v. Wright, (1 “ Salk, 273,) and Martin v. Ridge, (Barnes, 206,) a Sheriff suf619 “ fered a prisoner to escape on ca. sa. issued after a year and “ a day, without a scire facias / and it was held that he was “liable, and could not take advantage of the want of scire “facias; because the execution was good until set aside. The “ process was only erroneous and not void. The Supreme “ Court of this State have uniformly regarded this as a settled “ rule of law. In the case of Reynolds v. Corp and Douglass, “ (3 Caines, 269) decided in 1805, the Court all agreed in the “ validity of an execution issued after a year and a day, with- “ out revival, but they admitted it was liable to be reversed, “as erroneous. So also, in Jackson v. Bartlett, decided in “ 1811, (8 Johns. R. 361,) there was an ejectment against a “ purchaser of land under a Sheriff’s sale, and the regularity “ of the execution was questioned, because it issued after a “ year and a day, without a revival of the judgment by scire “facias. The Court say the question on the regularity of the “ fi.fia. could not be raised in an action of ejectment, and that “ though it may have issued a year and a day after judgment, “ without revival, it was only voidable at the instance of the “ party against whom it issued. The purchaser’s title could “ not be questioned in that collateral action under such an “ execution. It was a good authority for the sale.” (Id. 575-6.) I have selected this from the numerous cases illustrative of the same doctrine, for the reason that it disposes of another objection to the title of the defendant in this case, suggested, though not much insisted on; that is, that more than a year elapsed between the first and second executions. The same doctrine was affirmed by the Court of Errors in the case of Woodcock v. Bennett, (1 Cowen, 711,) Wooderville, J., said, “ The intimation of the Chancellor (in the case just cited) that “ the title might be affected by setting aside the execution, is “ rather a suggestion in the course of argument, than the re- “ suit of any decided opinion formed on the subject. Indeed “ if we attend to the definition of voidable process, that it “ stands good until reversed, and can only be reversed on ap — 620 — “plication of a party to the suit, we shall arrive at a contrary “ conclusion. A stranger in such a case, who becomes a pur- “ chaser, will be protected.” (Id 737.) And in this case also the distinction is taken between those irregularities which render the process void, and those which render it voidable only ; the latter being treated as erroneous process. “ The term “ voidable (it was said) implies that there is a party who may “ avoid. When issued after a year and a day, and the parties “ not changed, the plaintiff may or may not, at his election, raise “ the question of regularity. The law permits the plaintiff to “ issue it, and considers it regular at the time of issuing, sub- “ ject to be defeated, on the application of the defendant. If he “ apply before the execution is executed, the sale will be arrest- “ ed, and all proceedings under it cease; if he lie by until after “ the sale, then, on the principle that the execution is erroneous “ process,'and good until reversed, he cannot recover the goods “sold; he can only call on the plaintiff for the money recovered. In the other case,” (where the judgment debtor had “ died before execution) “ the act of issuing the execution was “ not warranted by law. This forms the substantial distinc- “ tion between void and voidable.” And the general rule is recognized that where the officer could justify under the process, the purchaser will be protected in his purchase. The reason why the sale shall not be avoided for errors in the judgment or process is “that great inconvenience would follow a “ contrary doctrine, so that none would buy of the Sheriff in “ such cases, and executions of judgments would not be done.” (Id. 734, et seq.) These references will suffice to illustrate the doctrine, which is every where maintained, that the purchaser of land at a Sheriff’s sale is not bound to examine into the regularity of the proceedings by which the execution was obtained; (1 Bailey, 512; 1 N. and M. 408; 2 Pet. 157; 1 Hill, S. C. 482; 1 Blackf. 210;) and that however irregular a proceeding may be, the title of the purchaser cannot be affected by it unless the proceeding was absolutely void. (2 McLean, 59; Sugden on Vendors, 68, 69.) — 621 — We think it cannot reasonably be maintained that the error relied on in this case, if it be such, of issuing execution out of the county without a return of nvMa bona, is an irregularity of so grave a character as to render the process a nullity, and the Sheriff a trespasser in proceeding to execute it; and if it was sufficient to afford a protection to the officer, it must also protect the purchaser. This, as a general proposition, and in its application to this case, is unquestionable. It is not necessary here to consider the exceptions to which it may be subject. It is suggested that it appears by the record that the defendants had property in the county of Nacogdoches sufficient to satisfy the execution. This, however, is a mistake. In so far as anything appears by the record upon that subject, it is strongly to be implied from it, that the defendants had not property in that county subject to the execution. But if it were proved that they had, such proof, I apprehend, would no more annul the title of the defendants in this case, than would proof that the defendants had personal property on which the Sheriff might have levied, annul the title of a purchaser of land sold under execution in any case. These are errors in the proceedings with which the purchaser is not chargeable, and which cannot be alleged to impeach his title. It is further insisted that the execution was void for the want of form, in not reciting that the defendants had not property in Nacogdoches county whereon to levy. This, at most, was but mere matter of form, which might have been cured by amendment in a direct proceeding to set aside the execution, (Graves v. Hall, supra-,) and can upon no principle be held to affect the title of a bona fide purchaser. All that concerned him was to know that there was a subsisting judgment in Nacogdoches county upon which the execution issued; and he had a right to suppose that the Court and its officers had not exceeded their power in sending the process out of the county. But it is insisted that as the attorney of the plaintiff in execution bid off the property, he was affected with notice of the — 622 — alleged irregularity, in issuing the process, and the purchase by him was consequently fraudulent and void ; and that the defendants, though not affected with actual notice, could derive no title under the fraudulent vendee. If it be admitted that the purchase by the attorney was fraudulent, the consequence insisted on, as to subsequent purchasers from him, without notice, would not follow. This question was considered in the case of Fowler v. Stoneum, (11 Tex. R. 478,) in reference to the Statute of Frauds. It will be seen by reference to the authorities there cited, that it is the settled American doctrine, that a bona, fide purchaser for a valuable consideration will be protected whether he purchased from a fraudulent grantor or a fraudulent grantee, though the statute declares the ¡fraudulent conveyance utterly void. (Id. 501-2-3.) The sale may have been fraudulent and voidable as to the defendants in execution; but it was binding upon the purchaser, and therefore it was not a nullity. It vested the title, until avoided by those who had the right to avoid it, in the vendee. His conveyance passed the title; and the bona fide purchasers without notice, cannot be affected by the alleged fraud in his purchase. (7 Mon. R. 612.) Being innocent purchasers for a valuable consideration, they can be in no worse condition than if they had purchased at the sale. Finally, it is insisted that the sale was void, because the property levied on did not bring its full appraised value. This objection to the title of the defendants manifestly is not tenable. But one levy had been made, and that not of property of the defendants in execution. They had refused to point out property, and it became the duty of the Sheriff to mahe a levy in conformity to the directions of the law. Though not bound to receive the designation made by the plaintiff’s attorney, his having done so, did not affect the validity of the levy. (Bryan v. Bridge, 6 Tex. R. 137.) The levy and sale appear to have been regular and in conformity to law ; the property having brought at least two-thirds of its appraised value. (Hart. Dig. Art. 1327, 1340.) — 623 — We are of opinion, therefore, that the title of the defendants is not invalid by reason of any of the alleged irregularities in the execution and sale ; and that the Court erred in refusing to permit it to be introduced as evidence of title in the defendants. The judgment is therefore reversed and the cause remanded. Reversed and remanded.