David Ayres v. L. W. Duprey, 27 Tex. 593

Moore, J. No injury resulted to Ayres from the exclusion from the jury of the deposition of Ryan, the former sheriff of Lavaca county. It was intended to show by his testimony that the land in controversy had been appraised as required by law, before it was sold by him under the judgment and execution against Johnson, through which Ayres claims title. The return of the sheriff and the appraisement of the land, which he caused to be made, were before the court, and unquestionably are the primary and best evidence of Ms official action.

As a general rule, and in the absence of fraud or mistake, it certainly cannot be maintained that the official return of the sheriff can be varied or contradicted by Ms parol testimony. But an inspection of his deposition, which was excluded, and his affidavit attached to the motion for a new trial, makes it quite mamfest that his testimony would have added no strength to the case. It is very obvious that the appraisement to which he refers, is the same which was returned with the execution, and which was before the court.

If, however, there was really another appraisement, it was altogether immaterial, since from his testimony there was the same defect in it which was charged upon the one in evidence before the jury. The objections to the deposition of F. H. Ayres were also properly sustained. This deposition was offered for the purpose of contradicting the testimony and impeaching the character of Johnson, who testified in the case on behalf of the defendant, Duprey.

But we are clearly of the opinion that an inspection of the deposition shows that the witness Ayres did not show himself qualified to speak with reference to the character of Johnson for truth and veracity. His belief seems to be based upon his individual opinions and feelings, and not upon Ms knowledge of Johnson’s reputation in the community in which he lived, as to wMch this witness appears to be wholly uninformed.

Nor could Johnson’s testimony be contradicted by proof of declarations and statements by Mm, inconsistent with his present testimony, without laying a predicate for so doing by first inquiring of him as to those alleged statements, and thus affording him an opportunity of meeting or explaining them. Nor did the court err in refusing to receive the testimony of Phillips, also offered for the purpose of impeacMng the character of the witness, Johnson.

He says that he was acquainted with Johnson’s general character in the community in which he lived a number of years previously, and from that general character he would not believe him on oath. It is unnecessary at present to inquire whether the lapse of" time since the witness had known any thing about Johnson’s character, would not alone have disqualified him from .testifying. The rule governing the court in receiving testimony to impeach the character of a witness, was most elaborately examined by this court in the case of Boon v. Wethered, 23 Tex.

Rep., 675, and upon a thorough examination of the authorities, it was held in the impeachment of a witness the inquiry should be confined to his general character for truth, and should not extend to his general moral character. 3STo injury is shown to have been done by the refusal of the court to continue or postpone the cause on account of the absence of two of the plaintiff Ayres’ counsel. Matters of this kind are addressed to the discretion of the court trying the case, and its decision will not be interfered with, unless injury or injustice to the parties have plainly resulted from it.

The objection of Ayres to the deposition of Johnson was properly overruled. The release of the witness was authenticated in strict accordance with the recognized construction of the statute and the former decisions of this court. If, however, as Ayres’ counsel insist, the covenant of warranty in Johnson’s deed to-Gray does not run with the land, and pass by the quit claim deed of Gray to the defendant, Duprey, Johnson undeniably had no interest in the result of this suit. The judgment in it worked no injury to Gray. It gave Duprey no right of action against him.

And in a suit between Gray and Johnson it could not be used as evidence of a breach of covenant, if such a suit could possibly bei sustained by the former, after he had parted with his title to the land by a quit claim deed, and when, consequently, he could not be injured by the subsequent failure of the title.

But if the-covenant of warranty ran with the land and passed by the quit claim deed of Gray to Duprey, or if the latter had in equity the right to’enforce the covenant in the deed to Gray, because ha was acting as his agent, and the conveyance was really taken in trust for his benefit, the release was effectual and restored the competency of the witness. At the request of the defendant, Duprey, the jury were instructed, unless the land was appraised on the day of sale, its sale by the sheriff was a nullity, and the plaintiff Ayres, acquired no title by his purchase under the execution sale.

Whatever may have been the result of the case, upon the. other issues, in it, this instruction necessarily precluded the jury from returning a verdict in favor of Ayres, and unless it can be sustained, the judgment must unquestionably be reversed. An appraisement before a sale under execution, was evidently required for the purpose of protecting defendants in execution against an undue and ruinous sacrifice of their property.

It would seem that the true value of the property, if real estate, might be more fairly ascertained by appraisers appointed before the day of sale, and who might thus have an opportunity of making a personal examination of the property, than by the appointment of appraisers on the day of sale, when, it is not unreasonable to suppose, they would often have no knowledge of its value, and would be forced to act upon unsatisfactory and doubtful information. The law, however, in plain terms, requires the appraisement to be proceeded with on the day of sale.

It gives the defendant in execution until that time,' to appear and exercise his privilege of selecting one of the appraisers. It may also be said to be the duty of the parties to the execution, to bring with them to the place of sale competent appraisers, and if they fail in doing so, they justly incur the injury resulting from their neglect. At all events the law is plain and unequivocal in its terms, and it is not for judicial or ministerial officers to disregard it.

The failure to appraise the land upon the day of sale, was, in our opinion, a departure from the provisions of the statute, which was not obviated by the previous appraisement; and the sale consequently must be regarded as an irregular or erroneous execution of the process under which the sheriff was acting. The question still recurs, however, as. to the effect which such irregularity will have upon the title under the^ sheriff’s sale. If the process under which the sheriff acts, is absolutely void, or if he has no authority to make the sale, his act in doing so is a nullity, and the purchaser acquires no title.

" But there is,” say the court in Sydnor v. Roberts, (13 Tex., 598,) “ a marked difference between that which confers the power to do a certain act, and the rules which direct and regulate the mode of its execution.

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 Ml 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.” In other words, if the sheriff is wanting in power to make the sale, the title claimed under it is void, but if there has been a defective or erroneous exorcise of the power conferred upon him, the title of the purchaser under some circumstances may be avoided in the proper time and manner as to some persons, and for some purposes.

For though the court speak of the title as void, as to some persons, and for some purposes, it is evident the word void is here used by the court, as is frequently the case, in its relative and not in its absolute sense. Did the power of the sheriff to sell the land of the defendant in execution, depend upon the validity or regularity of the appraisement, or indeed upon the fact of there being any appraisement at all? We think not.

We can see no reason for giving more potency to this provision of the statute than to its other requirements pointing out and directing the sheriff in the mode of executing the process, some of which were, like it, manifestly designed to guard the debtor against the fraudulent disposition of his property under color of legal process, or its undue sacrifice.

The omission by the sheriff' to give notice of the levy and sale, may be much more detrimental to the interest of the defendant in execution, than the failure to make an appraisement; yet it is most conclusively settled, such an omission does not make the sale void, but only voidable as to such parties as can take advantage of this defect, and this they must do in the manner which will be hereafter indicated. The Supreme Court of Georgia in the case of Brooks v.

Rooney, (11 Ga., 423,) says, “The purchase depends upon the judgment, the levy and the deed, and all other questions are between the parties to the judgment and the officer.” Again, “We believe this to be sound doctrine, and that although the failure in the performance of any part of the sheriff's duty, might subject him to an action in which he would be compelled to indemnify the owner of the land' which might be irregularly sold, or the creditor to the extent of the injury received by such sale, yet it would not destroy the title of the purchaser who has a right to presume that a public officer, known to possess the power to sell, has taken every previous step required of him by the law under which he sells.” (See also Sullivan v.

Hearnden, 11 Ga., 294; Cooper v. Harter, 1 Cart., 427; Clark v. Watson, 2 Cart., 399.) As to some parties, however, such irregular sales may be avoided ; and of these unquestionably are the plaintiff in execution and such as purchase with notice of the defect in the sale. Thus, in Trotter v. Nelson, (1 Swan., 7,) it is said, “But it has been held in such case, the plaintiff in the erroneous and voidable execution, cannot be considered a bona fide purchaser; because, having actual or constructive notice of the error in the execution, it was a wrongful act in him to enforce it upon the property of the defendant.

And as he can not be permitted to take advantage of his own wrong, his title to the property so acquired, will be avoided at the instance of the defendant.” (Winston v. Otley, 25 Miss., 451.) Such irregular execution of process, may be set aside by motion in the court from which it issued; or, in some cases, on an appeal to the equity powers of the court in a proceeding directly for this purpose, when with all the parties before the court, it can make its decree so as to relieve the one without detriment to the other. (Winston v.

Otley, supra.) It seems, however, to be abundantly settled, that the question of irregularity or error in the execution, or the proceeding under it by the sheriff, can never be discussed collaterally in another suit. It can not be made a question, it has been said, in an action in ejectment. When a party in a collateral action claims title under a sheriff’s deed, the court can not look into alleged irregularities in the process or proceeding of the sheriff.

Nor could it in such a case make a decree avoiding the sale, and at the same time protect the interest of all parties, whose interest would be thereby affected. (Jackson v. Robins, 16 John., 537; Thompson v. Phillips, 1 Bald., C. C., 246; Surggart v. Harber, 4 Scam., 364; Pollard v. Cocke, 19 Ala., 188.) The fact of the plaintiff in execution being one of the parties to the collateral suit, does not vary the rule. In Spofford v.

Beach, (2 Douglass, 150,) it is said, that “ the non-compliance by the sheriff with the requirements of the statute in regard to levy, advertisement and sale of real estate, is mere irregularity; and such irregularity must be complained of in due time, by motion, or they will be waived.” In Doe v. Harter, which was an action of ejectment, one of the parties claimed through an execution issued on a dormant judgment.

Smith, J., as the organ of the court, says: “We have not been referred to any case, nor have we been able to find one, where an irregularity of this kind, if it can properly be called an irregularity, has been held to invalidate the sale to a purchaser, with notice. On the contrary, there are numerous cases in which the general principle is recognized, that such an irregularity cannot be objected to in a collateral suit, and in some of them the question arose with reference to purchasers with notice.” (2 Cart., 252, and cases cited; also Starke v. Gildart, 4 How., Miss., 267; Lee v.

Crossna, 6 Humph., 281; Pollard v. Cooke, 19 Ala., 188.) As the defendant, Duprey, was not a party to the record in the case from which the execution issued, under which Ayres claims; and as he acquired his title under a deed from the defendant in execution, .of a prior date to the levy of the execution, and may have been ignorant of the sale of the land by the sheriff until it was too late to effectually protect himself by a motion to quash the execution, it may be said, and probably correctly, that he would therefore be authorized to invoke the equitable powers of the court.

And since there are no distinctions with us in legal or equitable actions, the facts before the court showing sufficient ground for avoiding Ayres’ title, the court below, it is insisted, should have so ruled, and its judgment may, upon .this ground, be sustained. Without questioning that a defendant in an action of trespass to try title might claim from the court equitable relief of this character, we cannot admit that this can be done merely by the answer of “ not guilty;” and it was not done by any special answer in this case.

In actions of trespass to try title, the defendant, it is true, is not required to put in any other plea than that of not guilty. The obvious meaning of this is, however, that it is unnecessary for him to file any other plea, to authorize him to make any defence applicable to this action; but unquestionably, if he wishes to assert an independent, equitable right, not involved in the issue as to title directly in controversy, he should present the facts by proper averments, and bring the necessary parties before the court to enable it to grant the relief to which he may be entitled.

It is suggested in the argument of counsel that Johnson having sold the land before the levy of the execution, although the purchaser failed to record the deed, he had no property in the land subject to the execution, and therefore no good could come from remanding the case. It is unquestionably a general rule that a judgment and execution attaches only to such interest as the defendant in execution may have in the property.

But this general rule is made inapplicable to such cases as the present by a direct statutory enactment. 'Many cases may be easily found in which it is held that the lien of the judgment only attaches to the interest of the defendant at the time of its rendition, and when there had been a previous sale, as here, the title of the prior purchaser was declared to be unaffected by the subsequent sale under the judgment, although purchased by a stranger without notice.

It is probable an examination of the statutes in the States where these decisions have been made will show .that there is a material difference in the phraseology of their law and ours.

In some of them, it is probable, the unrecorded deed is only avoided in favor of subsequent purchasers, and not, as with us, in favor of “ all subsequent purchasers and creditors.” These decisions seem to go upon the ground that since, as we have stated, the judgment lien could only attach to the then interest of the defendant in the property, and the purchaser could acquire by his purchase no greater- interest than the defendant owned, or than the plaintiff was authorized to reach, he was consequently not within the spirit or intention of the law for the protection of subsequent purchasers against unrecorded deeds.

Other courts, however, equally eminent for learning and ability, and, we think, upon better principle, hold purchasers at execution sales as fully within the protection of the registration laws as those who claim by direct and. immediate conveyances. (Morrison v. French, 23 Penn. State R, [11 Harris,] 421; Scribner v. Lockwood, 9 Ham., 184 ; 2 Nott. & McC., 105; 10 Watts, 13; Byers v. Engles, 16 Ark., 543; Fordeck v. Barr., 3 Ohio State R, 471.) In the case of Cooper v.

Blakey, (10 Georgia, 253,) Lumpkin J., says: “It has,not been denied in the argument but that a purchaser at a sale on execution, who has his deed first recorded, will gain the same preference over a prior unrecorded conveyance, as if he had bought directly from the debtor himself. For the effect of the sale by the law in this respect, is just the same as if made by the individual whose agent or trustee the officer becomes, to make the transfer. All the defendant's estate is sold. The purchaser takes his place. The mischief of an unrecorded deed is the same as to him as to a private purchaser.

He examines the title, and from anything that appears, the defendant is the undisputed proprietor, while in fact there is an outstanding deed from him which would sweep off the property.” If, however, Ayers could only claim under the protection extended by the statute to subsequent purchasers, it could be successfully answered, that he is not such a purchaser as comes within the meaning of the statute. It was only intended for the protection of bona fide purchasers. Courts will not permit its use as a means of perpetrating frauds.

If a party has notice of the unrecorded deed, he can claim no benefit from the failure to record it. This, however, is a mere question of fact with which, at present, we have nothing to do. But, evidently, only those who have paid a valuable consideration can claim to be bona fide purchasers. Does the plaintiff who purchases at his own execution sale, and credits his bid on the execution, stand in this category? It is held not. To constitute a person a bona fide purchaser, he must have advanced the consideration for the purchase.

It will not constitute a bona fide purchaser, that the. creditor bids off the premises, and applies the bid on his judgment. That is a precedent debt, and the consideration is not advanced upon the faith of the purchase. (Dickerson v. Tillinghast, 4 Paige, 215; Wright v. Douglass, 10 Barb. S. C., 97.) But, as has been already said, creditors as well as purchasers are within the protection of our statute, and although Ayres may not be able to claim its protection in the latter character, he may probably be able to do so in the former.

His right to do so depends upon the fact whether he had notice of the unrecorded deed from the defendant in execution, prior to the time when he caff claim his right became fixed, to call the statute to his aid for his security as a creditor. Actual notice or reasonable information of the unrecorded deed is certainly as effectual against creditors as-subsequent purchasers, and if Ayres had notice of the deed froin Johnson to Gray'when he became a creditor, there is an end to his-case. It may, however, be important to consider the effect of notice to him at a subsequent period.

Does the statute extend to-every class of creditors, or are such only as have acquired some character of lien, recognized by law as within its protection ?' There may be cases in our court, without the question having been specially adverted to, which have gone upon the doctrine of all creditors being within the law, though if so, we cannot at present call them to recollection. In Bennett v. Cocke, (15 Tex., 67,) there was a levy of execution upon personal property, and a claim interposed to try the right of property.

The court guardedly say, “It is manifest that throughout the proceedings of the court below the defendant was regarded as a creditor in the sense of the statute.” Again, “If the defendant be a creditor within the meaning and scope of this provision, (and as such he was considered, and the rights of the parties were adjudicated upon this hypothesis,) the only question,” &c.

But we presume there can be hut little doubt either in principle or authority in sayingf that only such creditors as have secured some character of lien upon the land before notice of the unrecorded deed are within the protection of the statute. The creditor cannot object to the sale of the property by the debtor, before his lien has attached to it, Such sale, if the title is registered, is conclusive upon the creditor. Why shall he complain if the same effect is given to notice to him of the preceding sale, before he has secured a lien upon the property ?

The only consequence to him of the failure to record the deed, in such case, is the additional opportunity which has been afforded him of subjecting the property to his debt, by fixing his lien upon it between the time of sale, and his getting notice of it. It is sometimes said, that creditors should be protected unless they had notice at the time' credit was given, because the credit is extended upon the faith of the debtor’s owning the property, if the title is then standing in his name. But this argument, if it is good for anything, proves too much.

If the principle was sound, it would follow from it, that the creditor’s right to satisfaction of his debt out of the property owned by the debtor at the time credit is given him, is superior to the claims of those subsequently dealing with him. The unrecorded deed is good between the parties; the grantee then has dealt with the grantor, and paid the consideration for the land upon the faith of the effectuality of his title, and that it will not be swept from him by liabilities contracted by the grantor; why then does he not occupy as favorable a position as the general creditor?

If he does, and we think it can not be doubted, the record of his deed or notice to the creditor before any specific right of the latter has attached to the land should operate for his effectual security. (Daniel v. Sorrells, 9 Ala., 436.) The judgment is reversed and the cause remanded. Reversed and remanded.