D. C. Jones v. C. R. Smith, 55 Tex. 383

Watts, J. Com. App. The intervenor was not seeking to establish any claim or demand against the estate of John T. Wilson. The object sought by him was to subject the property in the possession of the sole legatee to an amount paid by him in discharging a valid incumbrance and lien upon that property. This being the case, the executors, under the independent will of Wilson, were not necessary parties to the suit. The validity of the sheriff’s sale to the intervenor Smith was directly involved in the suit between Wilson and the appellants.

Smith had purchased the land at sheriff’s sale under a valid judgment, which was a lien upon the same. The sale was ineffectual to pass title to the land, for the want of a proper description in the sheriff’s deed. Smith had conveyed the land to the plaintiff and warranted the title. It is clear that if the sheriff’s sale is to be adjudged of no effect in the suit between Wilson and the appellants, that this adjudication would render Smith liable on his warranty to Wilson.

Therefore Smith was interested in the subject-matter of the litigation; and as that interest was liable to be affected by the judgment which would be rendered in the case, he had the right to intervene, and set up and have his rights adjudicated in that suit. Garrett v. Gaines, 6 Tex., 435; Smith v. Allen, 28 Tex., 498. In the case of Burns v.

Ledbetter, 54 Tex., 374, the rights of a purchaser at sheriff’s sales, when the judgment was valid but the sale ineffectual, were fully considered by us, and, after a careful review of the authorities, we reached the conclusion that, if the purchaser was not guilty of fraud in the purchase, he would be entitled to be subrogated to the lien of the original judgment which his money went to discharge. In McDonough v.

Cross, 40 Tex., 285, the court said: “As he (McDonough) discharged, however, a valid judgment debt against the estate, which was a charge against the devisees, we think he was subrogated to the rights of the judgment creditor, and be could by the proper presentation of his rights have subjected the land to the payment of the judgment, in preference to any claim upon it by the devisees. There is no pretense that the Ackerman judgment was not a valid debt against the estate, of which Mrs. Jones was the sole devisee, and constituted a lien upon the land.

The evidence clearly shows that Smith purchased the land at sheriff’s sale and paid the money, which was applied to the discharge of the judgment; that the sale of the sheriff was invalid by reason of his failing to give a sufficient description of the land in his deed to Smith. Under such circumstances, Smith had the right to be subrogated to the lien of the original judgment upon the land, for the amount he had paid in the discharge of the same. Nor were his rights materially affected by the fact that he did not get possession of the land under his purchase.

If he or his vendee was in possession, the appellants could not disturb that possession until they had • refunded the money paid by him in discharging the judgment; and if not in possession, he would be entitled to be subrogated to the lien of that judgment. Burns v. Ledbetter, supra, and authorities there cited. Appellants complain of the charge of the court, because it would seem that the court below intended, from the language of the charge, to make them individually liable for the amount Smith had paid in discharging the Ackerman judgment.

The language of the charge might indicate such to have been the view of the court, but an examination of the decree fully and clearly shows that such was not the object or purpose of the court. The appellants are not individually bound for any amount to Smith; his lien is foreclosed upon the land, and to that he must look for a repayment of his money. The homestead right of the appellants is not affected by the judgment; the lien is foreclosed upon the land, subject to their homestead rights. We are of the opinion that the judgment ought to be affirmed. Affirmed. [Opinion delivered October 31, 1881.]