On Motion for Rehearing.
[4] The appellants, in an argument accompanying their motion for rehearing, insist that this court, relative to the five-year statute of limitations, as applied to the registered deed, is in conflict with the case of Mote v. Thompson, 156 S. W. 1106. In the Mote-Thompson Case, it is apparent upon the record in the cause, that neither the three nor the five year statute of limitations could apply; and such pleas, upon the status of the record, were so inapplicable as, that appellant in that cause, did not assign the same in the motion for rehearing, nor in the application for the writ of error to the Supreme Court. There was an assignment, however, based upon exceptions referable to the four-year statute of limitations as applied to the judgment, and on account of the nature of the action of trespass to try title, and the judgment being void, of course! the statute of limitations would have no application whatever; and the language of the court in that cause, “If, as contended by appellees, the judgment is absolutely void, no period of time under any statute of limitation could give the judgment validity,” as applied to that case, is, of course, correct —“no period of time under any statute of limitation could give the judgment validity,” which is an entirely different question than one of giving a deed validity under the five-year prescription.
The Mote-Thompson Case did not hold, nor tend to hold, that which appellant in this case construes it to have held. The case of Railway Company v. Vance, 155 S. W. 698, by this court, was one where limitation was not involved, and where the language used as applicable to an absolutely void judgment is pertinent and correct.
Appellant asserts that the first deed, the tax deed, shows that the notices “were posted for 20 days.” The deed recites that notices were posted “for more than 20 days successively next before the day of sale.” There was an interim of 58 days from the date of the judgment to the date of sale. We did not, as suggested, overlook the sixth assignment of error, but thought it unnecessary to discuss it. It has been frequently held in this state that the statute requiring a sheriff to advertise a sale in a particular manner is not mandatory in the sense that unless complied with he will have no power to sell, with exceptions inappropriate here; and it has been consistently held that noncompliance with the statute in that respect constitutes a mere irregularity. Sales under execution are not void on that account, though, of course, under appropriate conditions, are voidable when the proper effort is made to set the sale aside. Moore v. Johnson, 12 Tex. Civ. App. 694, 34 S. W. 771; Morris v. Hastings, 70 Tex. 29, 7 S. W. 649, 8 Am. St. Rep. 570; Holmes v. Buckner, 67 Tex. 110, 2 S. W. 452; Howard v. North, 5 Tex. 291, 51 Am. Dec. 769; Patton v. Collier, 13 Tex. Civ. App. 544, 38 S. W. 53; Freeman on Executions, vol. 2 (3d Ed.) § 286.
The Supreme Court, in effect held, in the case of Bean v. City of Brownwood, 91 Tex. (referring particularly to bottom page 689, 45 S. W. page 899), referable to a tax sale, that the failure to give personal notice to the owner of land prescribed by another statute, while a grave irregularity, would not render the sale void; though on a motion directly to set the sale aside, on account of its voidability, the failure to give such notice would be cause to vacate the same. If the decisions above apply, and we assumed they did, the suggestion in the deed as to the number of notices was not of itself notice of a void sale and stamp the first deed as absolutely void, on that account *762alone. However, we préfer to rest our judgment in this case more particularly, as held in the original opinion, upon the quitclaim deed from Brown to Howe.
We admit the great hardship in this case is appealing, and the proposition of a man Knowingly violating the law, in order to obtain a title, though a tax title may he to some repugnant; and we have attempted to solve the difficulty of appellants, that in some manner an officer who obtains another as a purchaser at a tax sale, and then receives from said purchaser another deed, though he may comply with the statute of limitations, as to adverse possession and payment of taxes — that such conduct is an estoppel in law against his plea. We may be in error, but the best investigation and thought we have been able to give are-unavailing to us in view of the decisions of this state, and their tendency with reference to this five years’ statute; and we have never arrived even at the point to solve the question whether to assert such an estoppel for the purpose of destroying said plea, appellant would have been under the necessity of pleading the same, which was not done. Limitation as to land has inherent in it, often, in individual cases, in a moral sense, legalized elements of conduct, which the individual conscience brands as legalized robbery; but according to public policy such statutes, against those who fail to occupy the land in person or by substitute or avail themselves of some of the implied purposes for which the state originally grants the land, are considered statutes of repose, inuring to the benefit of those who will occupy and use the same.
The motion is overruled.