It appears that a jury was waived and the case submitted to the Court at the Fall Term, 1856. But it -does not appear upon what evidence, for the reason, doubtless, that the Court did not decide the cause upon the facts in evidence j but, having held it under advisement, dismissed it at the succeeding Term upon a motion then made. There having been no decision upon the merits, it was unnecessary to bring before this Court a statement of facts.
It appears that the ground of the motion to dismiss, and of the action of the Court thereon, was the previous order (at the Spring Term, 1847,) to the effect, that if the plaintiff should not amend his petition by the first day of the Term nezt succeeding the order, the case should be dismissed. The motion assumed that the failure to comply with the order operated a dismission of the cause. But this manifestly was a' mistake. It required a final judgment, from which an appeal would lie, to effect such dismission. No such judgment was rendered. The cause was not dismissed; but the defendants appeared, without insisting on enforcing the order, and took further action in the cause; which was a waiver of the order. There was no necessity for the plaintiff to amend at the time appointed ; there was then no competent Court to try the cause ; and had there been, the amendment must have been received at any time before the cause was called for trial, provided the delay was not such as to prejudice the rights of the adverse party. The amendment filed subsequently, (in 1854,) long before the cause was called for trial, was a complete answer to the present motion. If further answer were necessary, it is *296found in the subsequent action taken, and leave given to amend,, which effectually superceded the order of 1847. After such further action by the parties, and especially after the case had been once submitted to the Court for its decision on the merits, it was too late to call up this defunct order of 1847, and ask its-enforcement by a motion to dismiss made ten years after its date. The motion presented no sufficient ground for dismissing the case.
But it is insisted for the appellees that the case was rightly dismissed for other causes not embraced in the motion. Those, relied on, which require notice, relate to the plaintiff’s title,, acquired by his purchase at the sale under the decree foreclosing the mortgage. It is insisted that the sale was void and conferred no title, because the lien of the judgment had not been preserved by the issuance of execution. Supposing that to have been necessary, in the case of a decree for the foreclosure of a mortgage, still the execution issued in 1846-was not a nullity, though no writ had previously been issued upon the judgment; and the title of the purchaser is not affected by the omission. This point is settled by previous decisions. (Hancock v. Metz, 15 Tex. R. 205 ; Sydnor v. Roberts, 13 Id. 598.)
It is further objected, that the plaintiff acquired no title by his purchase, because the law was not observed in the appraisement of the property. Whether there was such a departure from the law in this particular as to invalidate the sale, it is not necessary, in the present attitude of the case, to determine. For if it be admitted yet to entitle the defendants to avoid the sale and retain the property, it was incumbent on them to refund the price paid by the purchaser, which was received in discharge of the judgment. It was so decided in the case of Howard v. North, (5 Tex. R. 290.)
But I apprehend the sale was not absolutely null for the want of a proper appraisement; but was liable to be avoided only by the party who had the right to complain of the irreg*297ularity, because affected by it. The defendants, in their answers, sought to avoid the sale on this ground; and the amended, petition, filed December 15th, 1854, in the nature of a replication to the answer, asked that, if for any cause the sale should be adjudged invalid, the plaintiff be reinstated in his original right in the decree of foreclosure, and that he have execution thereof. To this he was clearly entitled on the authority of the case last cited, though the former sale were held to be absolutely void, if indeed he was the beneficial owner of the judgment. If not, he was entitled to be reimbursed the money he had paid. Until the sale was avoided at the instance of the defendants, the plaintiff, as the purchaser, was entitled to recover the possession. He might have brought his action against the tenant in possession. But, it would seem, the tenant was not obliged to defend against the title of the true owner, but might attorn to him. (2 Smith’s L. Cases, 458, notes ; Walton v. Waterhouse, 1 Wms. Saund. 418 ; 6 Wend. 666 ; Camley v. Stanfield, 10 Tex. R. 546.) Having done so, there was no necessity of an action to recover of him the possession. But if an action was necessary, the present suit was well brought to quiet the plaintiff in the possession. And if the defendants were unable to respond to the plaintiff in damages, in any action ho might bring against them for the possession and the rents, he had the right to the interposition of the Court to restrain them from recovering the possession, and the rents, from the tenants in possession. But as the Court, in dismissing the case, appears to have proceeded upon a ground which did not involve a decision upon the merits, it is unnecessary further to revise the judgment upon the merits, until they shall have been passed upon definitively by the Court below. We are of opinion that the Court erred in dismissing the case; for which the judgment is reversed and the cause remanded.
Beversed and remanded.