T~XAA'ITORNEYGENERAL 

OF TEXAS 

Aus-cmr. T-e 78711 

JCBBN L. EllLL 

*TroRN~ GENEmAL 

July 30. 1974 

The Honorable Tom Hanna 

Criminal District Attorney 

Jefferson County 

P. 0. Box 252 3 

Beaumont, Texas 77704 

Opinion No. H- 358 

Re: Rights of purchaser at 

an execution sale based on 

a void judgment. 

Dear Mr.. Hanna: 

You have requested our opinion as to the rights of one who purcha.ses 

real property at a sheriff’s sale based on a void judgment. In connection 

with your request we have received from an interested party a memorandum 

with attachments which indicates that the facts you have presented to us 

are subject to dispute and may ultimately have to be resolved in litigation. 

It is not the function of this office to resolve factual questions. This 

opinion is based on the facts that you have presented to us, but it does not 

represent any determination on our part as to the accuracy of these facts. 

You state that in a criminal bond forfeiture proceeding the county 

obtained a judgment against a defendant and his sureties in the amount 

of thirty five thousand dollars. This judgment was void as to the sureties 

because process was never served on them. Nevertheless, on the basis 

of the judgment, execution was levied on some real property belonging to 

one of the sureties. An execution sale was conducted by the sheriff, and 

the property was purchased for five hundred dollars which amount was 

paid over to the county in partial satisfaction of the judgment. 

Subsequent to the execution sale the judgment was reversed by the Court 

of Criminal Appeals on the ground that the State had failed to tender the required 

judgment nisi into evidence. Purkey.v. State, 494 S. W. 2d 541, No. 45, 

862 (Tex. Crim. App., May 16, 1973). The case was later retried and a 

judgment was again entered against the sureties. This judgment has since 

ps 1685 
The Honorable Tom Hanna page 2 (H-358) 

been satisfied in full by the sureties. You ask us to assume that the 

original judgment was void and then ask what are the rights of a purchaser 

with respect to the property purchased at a sheriff’s sale on a.void judgment. 

The general rule is that an execution sale based upon a judgment 

which is not void but merely erroneous will be sustained if the purchaser 

is a stranger to the judgment. Thus, when the purchaser at an execution 

sale is someone other that the judgment creditor and is acting in good 

faith, his title to the property in question will not be disturbed’ or affected 

by a subsequent reversal of the judgment. Stroud v. Casey, 25 Tex. 740 

(1860); Texas Co. v. Dunlap, 41 S. W. 2d 42 (Tex. Comm. App., 1931); 

Glaze v. Johnson, 65 S. W. 662 (Tex. Civ. App.1901, writ ref.); and Cordray 

v. Neuhaus, 61 S. W. 415 (Tex. Civ. App. 1901, writ ref.). 

A different rule is applicable, however, when the judgment upon 

which an execution sale is based is void. In this situation a purchaser 

at the sale, even though bona fide and not the judgment creditor, obtains 

no title in the property purportedly sold and furthermore has no cause 

of action against the judgment debtor for the purchase price paid. This 

principle was first established in Texas in Stegall v. Huff, 54 Tex. 193 

(1881). Stegall had purchased real property belonging to Huff at a sheriff’s 

sale based on a void judgment. The judgment was void because the record 

indicated that process was never properly served upon Huff. Stegall was 

a stranger to the judgment and a bona fide purchaser. Nevertheless the 

Supreme Court held that, because the judgment was void, the sale under 

it did natdivest Huff of title to -his land. In addition the Court held that 

Huff was under no obligation to reimburse the innocent purchaser because 

otherwise Huff might indirectly be forced to pay an indebtedness which 

he did not owe. Stegall, supra at 197. See also Flanary v. Wade, 113 

S. W. 8 (Tex. 1908), Houston Ice and Brewing Co. v. Stratton, 89 S. W. 

1111 (Tex. Civ. App., 1905, no writ), and Texas Co. .v. Dunlap, 21 S. W. 

2d 707 (Tex. Civ. App., Waco, 1929), affirmed 41 S. W. 2d 42 (Tex. Comm. 

App. 1931). 

p. 1686 
The Honorable ,Tom Hanna page 3 (H-358) 

.: 

The principle established in Stegall plainly controls the fact situation you have presented to us. The surety whose property was sold at an 

execution sale based on a void judgment’has not been divested of his title 

to that property. The purchaser at the sale, though entirely innocent, has 

no cause of action against the surety for the purchase price he paid to the 

sheriff because otherwise the surety might be forced to pay a debt he did 

not owe. In short the purchaser must look elsewhere for relief from his 

predicament. 

/ 

Ordinarily, in resolving the claim of an execution sale purchaser 

against a judgment creditor for reimbursement of purchase money, Texas 

courts apply the doctrine of caveat emptor, holding that neither the judgment creditor nor the sheriff may be held responsible for a failure of title 

to property purchased at a sheriff.‘8 sale. Even though the purchaser 

obtains nothing for his money, he is not entitled to recover the purchase. 

price from them. Russell v. Sarkeys, 286 F. 2d 736 (5th Cir. 1961); 

The purchaser, however, is permitted to assume the posture of the judgment creditor and pursue whatever claims the creditor has remaining 

against the judgment debtor. Rosenthal and Desberger v. Mounts, 130 

S. W. 192 (Tex. Civ. App., 1910, no writ). Subrogation would be of no 

avail to the purchaser in the fact situation you have described. The 

original judgment was void and the second judgment has been fully 

satisfied. The county no longer has any claims against the defendant 

and the sureties which could be pursued by the purchaser in an effort 

to get back his money; 

However, where equitable considerations dictate otherwise, the 

caveat emptor doctrine is not applied inflexibly. For instance, in Stock v. 

Hartgraves, 236 S. W. 2d 257, 258 (Tex. Civ. App. *San Antonio, 1951, 

writ ref.), the court rejected a strict application of the caveat emptor 

doctrine and stated that in circumstances where the judgment creditor had 

already been satisfied in full “nothing would be more unjust than for the 

purchaser at a void execution sale to receive nothing for the money he 

pays but the holder of the jtdgment be permitted to retain that money in 

satisfaction of his judgment. ” See also Estes v. Doty, 90 S. W. 2d 754, 

756 (Term. 1936); Danner v. Murnan, 178 N. W. 987 (S. D. 1920); and 

p. 1687 
The Honorable Tom Hanna page 4 (H-358) 

Schwinger v. Hickok, 53 N. Y. 280 (1873). 

In the fact situation you have posited, the judgment creditor, i. e., 

the county, in effect has been paid twice. The county’s judgment against 

the defendant and his sureties has been satisfied in full, and in addition it 

has received the money paid by the purchaser at the execution sale based 

upon a void judgment. The purchaser on the other hand has received nothing 

for his money. In these circumstances it is our opinion that, in accordance 

with the equitable principles we have outlined, the courts would find the 

caveat emptor doctrine inapplicable and would require the county to repay 

the purchase money to the purchaser. 

SUMMARY 

When the judgment upon which an execution sale 

is based is void, a purchaser at the sale obtains no 

title,in the property and has no cause of action against 

the judgment debtor for the purchase price paid. 

Ordinarily the doctrine of caveat emptor would preclude the purchaser who finds himself inthis situation from recovering his purchase money from the 

judgment creditor. But where the judgment creditor 

has in effect been paid twice,~,courts would as a matter 

of equity require him to repay the purchase money to 

the.purchaser. 

APPRb&D: 

ery truly yours, 

Attorney General of, 

v-- -‘- 

DAVID M. KENDALL, Chairman 

Opinion Committee 

Texas 

p. 1688