We are of opinion that the court erred in holding that the title of Thacher & Co. to lot 8 of the northeast quarter of out-lot 141, in the city of Galveston, was valid.
It was derived through a purchase made by one Russell at United States marshal’s sale, which sale took place before the door of the federal court-house at Galveston, under a judgment against John S. Jones, one of the defendants in a judgment rendered in the United States circuit court for the eastern district of Texas.
Our statutes in force at the time this sale was made required all sales of land made under execution to take place before the courthouse door of the county in which the land was situated. Pas. Dig., art. 3776; Casseday v. Norris, 49 Tex., 613.
It is held by this court that a failure to comply with our statutes-as to the time and place of making an execution sale of land renders it not only voidable, but void. Howard v. North, 5 Tex., 290;. Grace v. Garnett, 38 Tex., 155; Casseday v. Norris, 49 Tex., 613.
The United States statutes, as construed by the federal judiciary, require the marshal to conform to the state laws in making sales of land under execution upon a judgment of a United States court in a common law cause. The statutes, rules and regulations of the state in which the court rendering the judgment is held must be *73observed in the same manner and to the same extent, by the marshal or by the sheriff in making such sales. U. S. Rev. Stat., 916; Wayman v. Southard, 10 Wheat., 1; Smith v. Cockrill, 6 Wall., 756; Riggs v. Johnson Co., 6 Wall., 192.
As the sale made by the United States marshal to Russell, under whom Thacher & Co. claimed, was not in conformity with the laws of this state, not having been made before the door of the courthouse of Galveston county, it was therefore void, and conveyed no title. Casseday v. Norris, supra; Jenners v. Doe, 9 Ind., 466.
It was as lessee of Thacher & Co. that Stanley took possession of lot 8, and improved it in the manner shown by the evidence. At that time lot 8 was not in actual occupancy of the Galveston City Railroad Company; but whatever possession the company had of that particular portion of the northeast quarter of out-lot 141 was merely constructive, and arose, if at all, from the fact that its road had been built through a different part of said northeast quarter, the whole of which was claimed by the company.
Under these circumstances it is claimed that the appellants, as agents and officers of the company, were authorized to forcibly destroy the improvements of Stanley, and eject him from the premises to which he set up title.
A line of decisions can doubtless be found to the effect that “ one entitled to possession can make peaceable entry, even while another is in occupation, and that it is not unlawful for him to resort to such means, short of the employment of force, as will render further occupation by the other impracticable. Cooley on Torts, 323; Stearns v. Sampson, 59 Me., 568; Low v. Elwell, 121 Mass., 309.
In the two cases cited, the plaintiffs were tenants holding over and occupying houses belonging to the defendants, after the expiration of the terms for which they were leased. The defendants having peaceably regained possession and actual occupation of their own houses, it. was held lawful to remove the tenants so remaining and attempting to hold the premises. A contrary doctrine, or at least one to the effect that force cannot be used to expel the tenant, is held by other courts of high authority. Newton v. Harland, 1 M. & Gr., 644; Dustin v. Cowdry, 23 Vt., 631; Reeder v. Purdy, 41 Ill., 279.
As to whether the principle announced in the two cases just cited is correct or not it is not necessary for us to decide. Neither need we necessarily question its application to a case where the true owner is already in possession and actual occupancy of his premises, and an intruder, without claim of right, trespasses upon them and attempts to *74hold any part of them in defiance of the rightful owner. Ho such case is before us on the present appeal. Had the defendants owned the house which thev first rendered uninhabitable and then demolished, and had they been in the actual and peaceable occupancy of this house, and the appellee had intruded himself into it, and refused to vacate upon request, and the appellants had peaceably removed him, the cases would have resembled each other. Some analogy between them might have been drawn had the defendants been in actual occupancy, in pedal possession of lot 8, having the same inclosed, and the plaintiffs had made entry upon this lot, and placed a building thereon. But the defendants’ possession was such only as could be inferred from the fact that their railroad company owned the said northeast quarter and their road ran through a portion of it other than that in which lot 8 was included. Lot 8 itself was vacant and uninclosed. Stanley had a regular lease for this lot from parties claiming title to it, under a judgment and execution of the United States circuit court at Galveston. It is true, the sale under this execution had been made at the federal, instead of the county, courthouse; but as to whether or not this invalidated the title was a question for the courts to decide, and as applied to the circumstances under which this sale was made had never been determined by the courts of Texas. To say that in this state of case the appellants, although representing the true owner of the lot as subsequently determined by the courts, could forcibly eject the appellee from the premises, destroying his house and other property found in it, is to assert a proposition which, we think, has no foundation in law.
It is to dispense with actions for trying the title or right to possession of land. It is, as Mr. Cooley says, to make a man judge in his own cause with the right to confirm his judgment; to allow him to employ force against a peaceable party; to invite a breach of the peace and a public disturbance instead of a legal settlement of disputed titles. Cooley on Torts, 323.
Our statutes have provided ample remedies at law for the owner of lands against a claimant who takes possession, and attempts to hold as against the true and legal title.
A legal and peaceable remedy was open to the railroad company, and there was no necessity or propriety in its officers taking the law into their own, hands and expelling by force one who had not disturbed their actual occupancy, and the appellants should answer in damages for having committed a trespass instead of pursuing the remedies provided by law.
*75We are not authorized to say, upon the case made by the record, but that the plaintiff was entitled to recover vindictive as well as eompensatoiy damages. But we think the rulings of the court were, in some respects, calculated to increase the amount of exemplary damages beyond what would have been allowed upon charges strictly in accordance with the law of the case. The court held that Stanley’s lessor had a good title under the marshal’s sale. The case before the jury then was that of the owner in lawful possession of his land driven from it by persons having no right or interest in the property. They were made to believe that mere intruders, without shadow of title, had destroyed the house of the true owner, broken up his furniture and assaulted his son, when, in fact, the party injured was himself the intruder, and the injury had been committed by the agents of the just and legal owners of the property. It is easy to see that such an erroneous view of the case must in a measure have influenced the verdict of the jury in assessing punitory damages. For this error the judgment must be reversed, so that upon another trial the correct law as to the title may be given in charge and the vindictive damages, if allowed, be correctly assessed.
It is proper to say also that the actual damages were not shown by proper evidence to have been as great as the jury allowed. In order to have found the amount they did, they must have allowed what the property destroyed was worth to Stanley as testified by him, and not what was its actual value. There are cases where this might be the proper and only measure of damages; for instance, when property has no recognized standard of value; where the only means of arriving at the sum which will compensate the owner is to ascertain what loss he and his family would sustain by being deprived of articles so specially adapted to their use, and which could not be replaced in the exact condition in which they were destroyed. I. & Gr. N. R’y Co. v. Nicholson, 61 Tex., 550.
But the house, furniture and everything else destroyed by the appellants had a value easily arrived at and susceptible of proof by witnesses, and they were all capable of being replaced. The court, upon another trial, should confine the evidence to such actual value, and reject proof of what, beyond that value, the plaintiff considers them worth to him. Besides, his estimate seems to have been increased because the location of the house made it a good stand for a saloon — -a place where he could have had quite a profitable trade, whereas in fact he had no right to put or to continue it there, or to calculate upon making money at a place upon which he had intruded *76as against the rights of the parties from whom he claimed damages.
The language of counsel for appellees, in his opening argument to the jury, made the subject of a bill of exceptions, will not, of course, be repeated upon another trial. Hence we are relieved of the necessity of determining whether or not it is the presumption that, when such language is recalled in the closing address to the jury, its injurious effect has been neutralized and destroyed.
The other errors assigned are either such as will not probably arise upon another trial, or are not of sufficient importance to require attention.
For the errors stated the judgment will be reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered April 28, 1885.]