Haskins v. Wallet

Delany, J. Com. App. The first and second assignments of error complain of the action of the court in overruling the general [218] demurrer and the first and second special exceptions of the defendants. Our opinion is that the court did not err. The purpose of the suit was to set aside the sheriff’s sale under which the defendants claimed a large tract of land. The price paid for the land did not probablv'exceed one-twentieth part of its value. Very slight circumstances in connection with this very great inadequacy would be sufficient to set aside the sale. And if the plaintiff had proved, on the trial, the facts alleged in his petition, he ought to have recovered unless precluded by his long delay in bringing suit. The third assignment is that the court erred in overruling the exceptions numbered three, four and five, in which the defendants set up limitation, stale demand and lapse of time in ba,r of the plaintiff’s suit. This may be considered in connection with the seventeenth assignment, which is as follows: “ The court erred in refusing the first charge asked by the defendants, to the effect that ten years would bar a suit to cancel a sheriff’s deed.” These two assignments present one of the most important questions involved in the case. Appellee presents his view of the case thus: “ This being an action of trespass to try title, and not merely a suit to cancel a defective deed, or to remove a cloud from title, the plea of the statute of limitations would not be good on demurrer, but must be pleaded in bar, and sustained by proof to avail the appellants;” referring to Dangerfield v. Paschal, 20 Tex., 552; Grimes v. Hobson, 46 Tex., 419, and several other cases. In those cases, however, the court was considering the question whether the plaintiff could bring a second suit upon the same cause of action under the statute which has since been repealed. Pasch. Dig., art. 5298. Although in those cases the suits had been brought to annul opposing titles, or to remove cloud from the title of the plaintiffs, the court held that they were to be regarded as suits for the purpose of trying title to land within the meaning of that statute. But, so far as we know, our courts have never regarded the legal remedy of ejectment, or trespass to try title, as being the same in substance and effect as the equitable proceeding to cancel an opposing claim, or remove a cloud from the plaintiff’s title. They originated in different ages of the history of the law; they were enforced in different tribunals, and proceeded on widely different principles. The one was a legal remedy which the plaintiff might demand as a matter of right in a court of law. The other was a prayer for relief by the plaintiff, in a court of equity, and in such cases the plaintiff must make his application within, a reasonable time. [219] How, if we regard the present action as appellee seems to treat it — that is,, as an action at law merely,— then the plaintiff cannot recover unless the sheriff’s deed, under which the defendants claim, is absolutely void. If it be merely voidable, the court will not disregard it in a collateral proceeding. When the defendants offered the deed, it was excluded for the following reasons: 1st. Because there was a variance between the judgment and the execution, in this, that the parties to the judgment were not the same as those named in the execution. 2d. Because there was a variance between the deed and the execution, in this, that the deed recited that S. J. Davis, the maker of the deed, levied on the land, while the return on the execution showed that the land was levied on by George Strickland. 4th. Because the levy indorsed on the execution by Geo. Strickland did not describe the same land that was described by the sheriff’s deed. Our opinion is that the deed was not void, and that in excluding it the court erred. There could hardly be a doubt that the judgment recited in the execution was the same as the one rendered against the plaintiff; and this was put beyond question by the evidence offered by the defendants to show that the cause was sometimes docketed as it appeared in the judgment and sometimes as recited in the execution. See Freem. on Ex., sec. 43; Alexander v. Miller, 18 Tex., 893; Battle v. Guedry, 58 Tex., 112. Hor is there any merit in the second objection when it is considered that the sheriff, Davis, who made the deed received the execution from the hands of his predecessor, Strickland, who made the levy. There is no merit in the fourth objection to the deed based upon the supposed difference in the descriptions of the land contained in the levy and in the deed. The sixth, seventh and eighteenth assignments may be considered together. The defendants proposed to prove by Mrs. Haskins that her husband had paid the taxes on the land for the years 1870, 1871 and 1872. This was properly excluded because the witness was not speaking from her own knowledge, but from what she had learned from her husband. But when she proposed to testify that she herself had paid the taxes in 1873, the court excluded the evidence because she could not say Avhether the land had been assessed for that year or not. This was error. The evidence should have been ad [220] mifcted without regard to the matter of the assessment. Cantagrel v. Von Lupin, 58 Tex., 570. Turning now to the other-view of the plaintiff’s case, and regarding it as an equitable proceeding to set aside a deed and remove cloud, the most noticeable feature is the long delay of the plaintiff. The sheriff’s deed was made in 1867. This suit was brought in 1881. It does not appear that the plaintiff took any action whatever in the matter until 1877. Such long delay, as it seems to us, must be fatal to the plaintiff’s case unless some good reason is shown why action was not sooner taken in the matter. The seventeenth assignment presents this question as follows: “ The court erred in refusing the first charge asked by defendants, to the effect that ten years would bar a suit to cancel a sheriff’s deed.” This charge, in our opinion, should have been given. De Cordova v. Smith, 9 Tex., 129; Tinnen v. Mebane, 10 Tex., 246; Bremond v. McLean, 45 Tex., 10. We do not think that the facts proven in this case are sufficient to excuse the plaintiff’s long delay. The judgment should be reversed and the cause remanded. Reversed and remanded. [Opinion adopted February 9, 1885.]