Cravans v. Wilson

Citations

• 35 Tex. 52

Syllabus

<p>1. Note the animadversions of this court, in this case, upon the practice of district courts in submitting numerous special issues to juries,, without proper instructions upon the law governing the issues.</p> <p>8. It has already been settled by this court, that so long as the unconstitutional stay laws of 1866 were in practical operation, judgments did not become dormant by reason of the non-issuance of execution.. (Phillips v. Lesser, 33 Texas, 741; Sessums v. Botts, 34 Texas, 335.)</p> <p>3. The stay law of November 10,1866, though unconstitutional and void in its objects and leading provisions, kept judgments in force in a manner to authorize the issuance of executions within twelve months after the adjudication of the unconstitutionality of that enactment by this court, in January, 1868.</p> <p>4. In October, 1866, 0. recovered judgment against W., but, in consequence of the stay laws then in operation, no execution was issued until March 23,1868. On the fourteenth day of March, 1868, another - creditor recovered judgment against W., and execution was promptly issued thereon. Execution on O.’s judgment first came to the hands of the sheriff, who levied both executions upon lands of the defendant. At the sheriff’s sale the land was purchased by 0., and the purchase money was applied to his judgment. Thereupon the other creditor, treating the land as still subject to his judgment, sued out alias execution, and under it caused the sheriff to sell the land again, when he became the purchaser, and then instituted trespass to try title against 0. Held, that C.’s judgment was not dormant when his execution issued; that his title to the land was better than the plaintiff’s; and that, inasmuch as the first sale was made under both judgments, the proper remedy of the plaintiff, if he had been aggrieved, was not by suing out alias execution and causing a second sale )ff the land, but by motion against the sheriff to compel the application to his judgment of the procee