This is an action of trespass to try title, brought by appellants as the heirs of E.W. Richards, deceased, to recover a lot in the town of Rockport.
On March 20, 1878, Zuberbier Behan recovered a judgment against E.W. Richards in the County Court of San Patricio County, for the sum of $1007.10, with interest from that date at the rate of 8 per cent per annum. Afterwards, by an act of the Legislature of March 26, 1881, the civil jurisdiction of the County Court of said county, except as to probate matters, etc., was taken from it. Sayles' Civ. Stats., art 1172k. On the 29th day of November, 1882, an execution was issued by the clerk of the District Court of San Patricio County, directed to the sheriff of Aransas County, which recited that judgment had been obtained by Zuberbier Behan in the County Court of San Patricio County, etc., and that the civil jurisdiction of said court had been transferred to the District Court of said county. By virtue of this execution the lot in controversy was levied upon and sold, and C.F. Bailey, remote vendor of the defendant Belcher, became the purchaser for $110, which he paid, and a deed was executed to him therefor by the sheriff.
There is no merit in the first question raised by appellants, that the County Court was without jurisdiction of the subject matter in the case of Zuberbier Behan v. Richards, because the judgment appears upon its face to be for more than $1000. It will be presumed in favor of jurisdiction that the excess over $1000 was interest on the amount sued for. The County Court is a court of general jurisdiction within the limits prescribed by law.
There was no error in allowing Bailey, the grantee in the sheriff's deed, to testify as to its execution, since it does not appear that there were any subscribing witnesses to the deed. The question arises out of the remaining assignments of error, whether the district clerk had the power to issue the execution, as it was not shown that a certified copy of the judgment rendered in the County Court had been transmitted to the clerk of the District Court and recorded in the minutes of that court as is required *Page 286 by law in such case. Sayles' Civ. Stats., art. 2267a. It would be unprofitable to inquire which court, in the absence of the statute, would have had control of the enforcement of the judgment, for the statute points out the manner in which the district clerk shall acquire the power to issue the execution. The recital in the execution is not evidence of the authority.
It was necessary that a copy of the judgment rendered in the County Court, certified to by the county clerk, should have been recorded in the minutes of the District Court before the district clerk was authorized to issue the execution. Sayles' Civ. Stats., art. 2267a; Freem. on Ex., sec. 14; Wooten v. Pinkle, 25 N.E. Rep., 791. The execution by virtue of which the sale was made was void.
Since the judgment by virtue of which the execution issued is a valid judgment, appellee Belcher would be entitled to have the purchase money paid by Bailey for the lot refunded to him. Stegall v. Huff, 54 Tex. 193; Burns v. Ledbetter, 56 Tex. 285 [56 Tex. 285], are referred to for the distinction between a void judgment and a void execution, as to the rule requiring purchase money to be refunded.
The judgment of the court below will be reversed and the cause remanded.
Reversed and remanded.