Cook v. Sparks

Citations

• 47 Tex. 28

Syllabus

<p>1. Judgment—Execution.—An execution was levied on land in 1865, upon the dissolution and dismissal of an injunction; a writ of vendition exponas was also issued on the judgment, which had been enjoined, which had been rendered in 1858, but which was left in force after the injunction had been dissolved : Held—</p> <p>1. That while the satisfaction of the last judgment, against the original defendants and their sureties, would have extinguished the liability on the first judgment, until that was done, there was no inconsistency in botli judgments remaining in force at the same time, for the security of (lie payment of the same debt; and the plaintiff was entitled to the benefit of the increased liability against the original defendant, and their securities on the injunction bond as recovered in the last judgment.</p> <p>2. An execution having issued on the last judgment, it was irregular to issue a venditioni exponas on the first judgment.</p> <p>2. Same.—The land of one against whom judgment had been rendered, was levied on in 1865, and sold under a writ of venditioni exponas, in 1874, which issued about nine years after the return of execution on which the original levy was made; but the judgment debtor died in 1868, and his widow was administering on his estate, independent of the control of the Probate Court, under a will probated before and at the time the writ issued; the judgment creditor became the purchaser at the sheriff’s sale. On a motion made by the widow to set aside the writ of venditioni exponas, and levy and sale of the land thereunder, after the return of the writ: Held—</p> <p>1. That though a motion to set aside the writ may not be entertained after its return, for a defect merely formal, yet on a motion to set aside a levy and sale, the execution, and the circumstances under which it was issued, and the judgment on which it was based, as well as extraneous facts affecting their validity, could be inquired into by the court. The writ and the re