B. B. Cain v. J. F. Woodward et al., 74 Tex. 549

Hobby, Judge. The questions arising in this case, in the order presented, are: 1. Whether an execution issued and levied upon land subsequent to the death of the defendant in execution upon a judgment rendered against him during his lifetime is void? (This question arises upon appellant’s demurrer to appellee’s answer alleging this fact.) 2. Is a sale of land under an execution made after the return day thereof void? 3.

Can remote vendees of the land so sold holding by mesne conveyances under the plaintiff in the execution, who bought at his own sale and whose heir subsequently conveyed by quitclaim, have any equity upon which to invoke the doctrine of subrogation ? With respect to the first question presented it will be sufficient to say, without entering into an elaborate discussion of it, that it has been the subject of several well considered cases in our State, notably that of Taylor v. Snow, 47 Texas, in which the early case of Conkrite v.

Hart, 10 Texas, where the principle was in effect recognized that such a sale was absolutely void, and other cases in accord with it, were after a thorough consideration overruled, and the conclusion was reached that such a sale was not absolutely void. So also in Thompson v. Jones, Austin Term, T889 (12 S. W. Rep., 79), this subject was again under consideration, rand- Taylor v.

Snow, supra, cited with approval to the effect “that while a sale of property under execution after the death of the defendant is relatively void, and the title acquired by the purchaser at such sale can not be maintained against the administrator or parties acquiring their title under or through the administration, and that such sale may ,be avoided by any party having an interest in the property if he should seek to do so in the proper time and manner, this can not be done where there has not been and can not be any administration upon the estate, in a collateral proceeding.” As said in Thompson v.

Jones, supra, we conceive the above authority to be conclusive of the question, and that there was no error in overruling the exceptions of the plaintiff (appellant) to the allegations of the defendant to the effect that the sale Avas absolutely void because made under an execution issued and levied subsequent to the death of John Watrous, defendant in execution.

The decision of the second question, whether the sale of the land under the execution made after the return day was void, necessarily requires the determination of the antecedent inquiry, whether the law by its OAvn terms as it.then stood definitely fixed the return day of the execution, or whether the language, “shall be made returnable,” occurring in the laAv with reference to such writs, clothed the clerk with power by an endorsement to fix the return day. The law applicable to this case provided that “all executions shall be made returnable on or before the first day of the next term of the court,” etc.

Laws of 1873, p. 209, Pasch. Dig., art. 3775. True the proviso in this

section authorized the Avrit to be made returnable by the plaintiff’s attorney Avithin sixty or ninety days, but this applied only to first executions under that class of judgments mentioned in

section 1 of the Act of 1873 (Pasch. Dig., art. 3772); that is, final judgments rendered in the District Court in counties Avhere the term continued until the business was disposed of, or three weeks after overruling a motion for new trial. It is not pretended, however, that the writ under consideration comes within this class. It was issued on March 28, 1877, received by the officer April 3, 1877, levied on the land involved in this suit on the 4th day of April, 1877, and the sale occurred on the first Tuesday in May, 1877.

The next term of the District Oourt of Galveston County, to which the writ was returnable, began on the first Monday in April, 1877. See 26th Ordinance Constitution 1876, fixing terms of District Courts. It is obvious from this that the sale took place about one month after the return day of the writ, unless the endorsement, “returnable in sixty days,” which appears on the back oí the execution over the clerk’s signature, can be said to have the effect itself of fixing the return day sixty days from the 38th of March, 1877, the date of the issuance of the writ.

If such is the effect of the endorsement the writ would have been returnable about the 38th of May, 1877, and in that event the sale would not have occurred after the return day. But our execution laws have been repeatedly construed by our courts as fixing by their own phraseology the return day of the writ. Hester v. Duprey, 46 Texas, 626; Towns v. Harris, 13 Texas, 507; Bennett v. Gamble, 1 Texas, 134. “All executions shall be made returnable on or before the first day of the next term ” was the language of the statute.

And if the clerk can by an endorsement on the back of the writ fix the return day he can thus render nugatory the language of the statute, which fixes the return day “on or before the first day of the next term.” We are of opinion that such is the time prescribed by the law itself for the return day, except in the cases mentioned in

article 3773, Paschal’s Digest, and we do not think that this can be in any manner affected or defeated by the endorsement of the clerk, as in this case, under the laws then in force. It is manifest from the record that the sale of the land occurred after the return day, which was the first Monday in April, 1877; and having so occurred on the first Tuesday in May, 1877, it. was at a time when the execution was functus officio. Such being the case, the question recurs, is such a sale void ?

That a sale of land under an execution made after the return day thereof is a nullity and the purchaser acquires no title thereby is well settled in Towns v. Harris, 13 Texas, 507; Young v. Smith, 23 Texas, 598. The reason upon which the principle is founded, that a sale of real property made under an execution after the return day is void, is that, unlike the levy of the writ upon personal property, a levy upon land vests no right of possession or property in the officer.

Under it he has no power to turn the defendant out and take possession, but he can only enter for the purpose of -the sale, and there must exist some lawful authority for the conversion and sale of the property. The execution authorizes the officer to pass the title but not to change the possession. No such power is conferred by the execution after the return day. Hence there is no power in the officer, in the absence of a venditioni exponas, to enter into possession for the purpose of a sale, and no power to pass title. Young v. Smith, 33 Texas, 599.

We think therefore that the court did not err in holding the sale after the return day void, and that it vested no title in the purchaser. With respect to the last question raised—that is, appellant’s right of subrogation—it is sufficient to say that no equities exist as between the parties to this suit upon which to base the claim. We think there is no error in the judgment and that it should be affirmed. Affirmed* Adopted October 22, 1889. Rehearing granted at Tyler Term, and sent back to Austin, where still pending.