N. W. Battle v. Victoria Guedry et al., 58 Tex. 111

Delany, J. Com. App. The three assignments of error may be summed up in one proposition, that the court erred in holding “ that the judgments, orders of sale and deeds in evidence do not show that the title to the land in controversy was ever divested out of J. P. Clements, who is admitted to be the common source of title.” There is no explanatory evidence in the record. It is not shown that there was no such person as P. B. Clements, or that no judgment was in fact rendered against him. But we are asked to assume, as a matter of law, that a judgment against J. P. .Clements will support an execution against P. B.

Clements, and that a sale under that execution will pass the title of J. P. Clements. To do . this we must assume that P. B. and J. P. Clements are in fact one and the same person. It is necessary that the execution shall describe correctly the judgment upon which it issues. Mistakes of description, however, will sometimes occur, and the question in each case is to determine what is the effect of the misdescription. Mr. Freeman, in his work on Void Judicial Sales,

section 25, says: “ The most frequent mistakes in the issue of writs are made in attempting to describe judgments. The name of the plaintiff or of the defendant may be incorrectly stated, or the amount of the judgment may vary from the sum for which execution issues ” (and he might have added that the date of the judgment is sometimes incorrectly stated). “ These mistakes and variances are amendable..

If no amendment is made, and no objection to the form of the writ is interposed by motion to quash or vacate it, it must be treated as valid, unless the variance is so great that it appears not to be issued upon the judgment which is produced in its support.” And he refers us to his own work on Executions, sections 42 and 43. In his work on Executions, sec. 43, he says: “ There must in each case be sufficient to convince the court that the judgment offered in evidence, and that attempted to be recited in the execution, are-one and the same.

Hence, when the judgment offered in evidence was rendered in a different year and for a different amount from that recited in the execution, and no proof was offered to show that but one judgment had been rendered between the parties, the variance was regarded as fatal ” (citing 58 Ill., 167). The author cites a number of cases in which variances in the names of the parties have been held not to be fatal. Lee v. Orossna, 5 Humph., 281, was a case in which judgment was rendered against three defendants, and execution issued against only two.

The writ was held to be voidable only, and not void, and a sale of real estate under it passed the title. In Barnes v. Hayes, 1 Swan, 304, judgment had been rendered in favor of Levi Baker. The execution recited a judgment in favor of Payne for the use of Levi Baker. Held to be irregular, but not void. In most of the cases referred to by the author which are accessible to us, there was either no serious doubt that the execution had been issued upon the judgment which was produced, or else there was evidence in the record to show that the seeming variance was a mere clerical error. In Alexander v.

Miller, 18 Tex., 894, objection was made to an execution because it recited a judgment as rendered on the 9th, while the judgment, when produced, appeared to have been rendered on the 6th. It was shown, however, that no judgment had in fact been rendered on the 9th, but that the court had adjourned on that day, and these "facts were held sufficient to account for the mistake. We are referred by counsel to the cases of Hughes v. Driver, 50 Tex., 175, and Williams v. Ball, 52 Tex., 603.

But in those cases the misdescriptions were too slight to raise any serious doubt that the judgments offered in evidence were the judgments on which the executions issued. In the case before us a judgment is produced which was rendered against one man. An execution is offered which recites a judgment rendered against an entirely different man. We cannot conclude, without some other evidence, that these apparently different judgments were one and the same. [Opinion approved November 23, 1882.] Our opinion is that the judgment below should be affirmed. Affirmed.