Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-01-28

.,,i5s desreo Of intelligence IN making
u saareb could not fail 10 be appriseu
Of tho existence and character Oh tne
Judgment" We are however, 1te1 70
no caee directly In point aud nave neen
unable to find any; aud az the question
Il ono az Importance. and not necessary,
as we think, to the disposition oil TINS
appeal we leave IL undecided.
The second third and ninth assign
mcuta Of error. submitted together by
appellant. attack the levy ana sale unuer
which apelecs dpraigu title because oil
the issuance at the same time OF exc
cutions To Wise. Cooke Wichita, Archer,
Bovlor aud Wilbarger counties aud be-
cause of certain lcvies made under these
executions subsequent 20 the levy III
question. We are Of opinion thnt the
matters complained OF by these assign.
ments were but Irregularities which uid
not render the levy and sale void ana
that IN ~ much ~ the cours tpud tlht
they did not tend TO deprocinte the PRICE
Of the property sold, they would not con.
stitute sufficient ground to set aside tie
sale, especially after the lapse OF more
than four Years Freeman ON eNecu-
lions, sections 40 and 90; Rail
way company VS.. Morris. 90 Texas,
692; Earl VS.. Thomas If Texas. 5o3.
We also conclude that the propositions
asserted in said assignments that the
judgment must be held satisfied because
Of The subsequent lcvies. under the facts
disclosed by the record and found by the
court below cannot he sustained.
We are of the opinion that the incon.
elusive circumstances relied upon Ia show
satisfaction Of their judgment were
not sufficient To require finding that IL
had been satisfied IN full nc the time Of
the sale, and hcncc that the sale WINS
void. See Freeman on Execution, sec
ton 2GO.
The twelfth assignment insists that
the purchase by nppellccs az "A trustee
sale under the deed of trust IN favor Of
Gregory. Cooley 4 Co. (which deed Of
trust was held To be- yoidl amounted to
an abandonment of their tide under the
execution sale our conclusion upon this
assignment h., that the purchase mt thu
trustees sale, being iu compromise Of
| the litigation about the validity of tho
deed of trust. was intended TO strengthen
and did not have the effect to destroy
the title already acquired
The fifth assignment Of error pro-
uOunces the execution sale void because
the sheriff who executed the writ was
hrothpru'law 10 one Of the defendants
| therein, tu.wit; ID. ". Phillips. In the
| absence of q statute declaring such a dis
qualification we conclude that the net
of the sheriff was not as if done without
any official authority and hence not
| void. For review Of the authorities ON
] this question see Baker vs.. Rcnick. a.
| y. II. 30; see also Meachem ON Public
| Officers. sections 5iS aud 80.
| lt follows from these conclusions that
| appellants did not acquire 10y their pur-
! chnsc under subsequent execution sale
| under % Judgment lien, which Il valid
| was subsequent to the execution lien
| under which appcllccs claim, u superior
! title 10 that Of appcllees. aud therefore
| the appellants cannot recover the prop.
crty Ia controversy They contend how.
| ever. IL not entitled TO this relief that
! uppellces should bc dpcrccd to hold thu
| land in trust for appellant bank aud
that equitable relief be granted. This
| prayer is not accompanied hy any offer
| TO do equity and we ARE OF the opinion
| Tint, I'm view of the delay i'm bringing
this suit aud of the changed condition OF
! the parties Interested, under the facts
! found by the learned judge. the vacation
| Of the execution sale undcrwhch appel
! Ices dcraigu title would be- manifrstrdly
| meQuitublc aud that no error was com,
mittcd IN refusing equitable relief Free
man on Execution, section BOZ q.
This disposes of all the other assign
mcuts Of error
The Judgment win therefore be- in al
things affirmed
(Signed /. w STEPHENS.
Associate Justice.