Cook v. Love

Walker, J. This is an action of trespass to try title. Both parties claim under W. C. Hynson. The property was sold at sheriff's sale, on a judgment for $785, rendered in favor of the plaintiffs on the thirteenth day of March, 1858. On the seventeenth of March, 1858, Hynson sold and deeded the land to one Frais, under whom the appellee claims title. Prior to the rendition of the judgment of March 13, 1858, Frais had commenced two suits by attachment, one for $2500 against W. C. Hynson, and one for $1400 against W. C. and C. E. Hynson. On the first of April, 1858, judgments were rendered against the Hynsons for the latter claim in personam, and no judgment or order of any kind on the attachment, Frais appearing to rely upon his deed for the land. This deed was subsequent by four days to the date of the lien,- under which appellants claim title. We are unable to say whether there was any validity in the attachment or not. It appears to havebecn abandoned. It could only [491] have operated as an inchoate lien upon the land, and to make it avail anything as against the judgment of March 13, it must have been carried into a judgment, which it never was. There .appears to have been no irregularity or fraud in the sheriff's sale. The property only brought <$25, but this was probably owing to the fact that Frais's attorney forbid the sale, and gave public notice of Frais’s claim of title under his deed of March 17, 1858. This, deed, unsupported by any subsequent judgment or order upon the attachment, cannotcut out the appellant’s title under a judicial sale. We must therefore reverse the judgment below, and inasmuch as a jury was waived below, and the case tried on an agreed state of facts, we proceed to render judgment for the appellants, that they recover the land in controversy, together with their costs in this court and-in the district court, and that the writ of possession issue; and that appellee be forever barred from setting up title to the land in controversy. Eeversed and rendered.