Platt v. Philips

Citations

• 37 Tex. 9

Syllabus

<p>1. P. recovered a personal judgment against T., as principal, and his sureties, and in the same action obtained a decree foreclosing a mortgage given by T. to secure the same debt. Order of sale issued on the decree of foreclosure, but no execution was then issued on the personal judgment. The sheriff sold the mortgaged property under the order of sale, and then, the proceeds being insufficient, attempted, without other process, to sell also certain city lots of one of the sureties, to make the balance of the money. Held, that this latter sale was a nullity, for the want of legal process empowering the sheriff to make it; and, therefore, the purchaser, on the one hand, was not bound to pay his bid, nor was the j udgment creditor, on the other, entitled to the money, though paid by the purchaser to the sheriff.</p> <p>2. After the sale, as above stated, the purchaser, ascertaining that he had obtained no title to the lots, obtained from the attorney of the plaintiff a transfer of the judgment, and caused execution to issue against all the defendants; and under it had the same lots levied on and sold, and again bid them off as purchaser ; but this time he paid no purchase-money, but procured a deed from the sheriff in consideration of the purchase-money previously paid by him on the void sale. That money had passed into the hands of the then attorney of record of the plaintiff in execution; but not having been paid over by the attorney to the plaintiff, the latter, previous to the second sale, had notified the sheriff to pay no more of his funds to the attorney, and that he, the plaintiff, would look to him, the sheriff, for his money. After the second sale the plaintiff moved against the sheriff and his sureties for the amount of the purchaser’s bid at the second sale, and for the statutory damages of ten per cent, per month. Held, that the sheriff and his sureties are liable for the money and legal interest, but not for the statutory damages.</p> <p>3. Notificati