McLennan County v. Graves (26 Tex. Civ. App. 49, 1901)

HUNTER, Associate Justice.

This is a motion made in the District Court of Eastland County on December 22, 1899, to retax the costs in this case, after the term at which the judgment was rendered, and to compel the sheriff to pay over the gross proceeds of the sale of the McLennan County school land to the appellant. On June 30, 1898, appellant, McLennan County, recovered a personal judgment against John N. Graves for $25,065.16, together with 8 per cent interest per annum thereon and costs, and foreclosed its vendor’s lien on the land particularly described in said judgment, and said judgment directed the clerk of said court to “issue an order of sale to the sheriff or any constable of Eastland County, directing him to seize and sell the same [said land] as under execution in satisfaction of this judgment against Graves; * * * and upon the motion of the defendant Graves, which is assented to by the plaintiff and defendants, it is further ordered that said lands so above foreclosed upon be sold in parcels, according to the subdivision thereof, as shown by the maps and plats thereof attached to plaintiff’s pleadings herein, selling first in such parcels all the land which has not been sold by Mary A. Newcomb, her executor, I. N. • Leeper, or the defendant Graves, and thereafter to sell the. land, which has been sold as follows: To C. F. Jones, lot 25, league 1, sold October 17, 1891; J. A. Moseley, lot 24, league 1, of same date; C. Brashear, lot 39, leagues 3 and 4, sold same date; and E. S. Stanfield, lot 20, league 1, sold March 21, 1886; and F. M. Bourland, lot 41, leagues 3 and 4, sold same date; and that said lots just described be sold in the order named.” The decree failed ■to direct how the proceeds should be applied. On June 24, 1899, an order of sale was issued on said decree, and levy made thereunder on all the lands described, when for want of time it was returned, and a venditioni exponas issued on September 14, 1899, under which the sales were made. The return on this writ is as follows: “And afterwards, on the 20th day of September, 1899, I advertised the same for sale at the courthouse door of Eastland County, Texas, on the 7th day of November, 1899, the same being the first Tuesday of said month, by written notices posted for twenty days successively next before the day of sale, at three public places in the county of Eastland, one of which was at the courthouse door of said county;” and by mailing and delivering to said Graves and the other defendants and their attorneys the proper notices of said sale. The return of the officer then proceeds: “And on said 7th day of November, 1899, between the hours of 10 o’clock a. m. and 4 p. m., at the courthouse door of said Eastland County, in pursuance to said advertisement, sold said property at public auction, in parcels, to the following named parties, to wit.” The return then shows that he sold to McLennan County fifty-six parcels, naming and identifying them;