
    Arnold v. Leatherwood.
    (No. 933.)
    Land, sale of for costs while case pending on appeal, void.
    Appeal from Johnson county. Opinion by Delaney, J.
    Statement.— The present case grew out of the case of Arnold v. Caudle, 49 Tex., 527. Mrs. Campbell, nee Mrs. Caudle, the vendor of appellee, was a plaintiff in that case, and appellant was a defendant therein, and appealed the case. Pending the appeal a certified copy of bill of costs was issued by the clerk of the court below against plaintiff in that suit, under which the land in controversy in that suit, and now in question in this suit, was sold by the sheriff and purchased by appellant’s vendee. The question presented is whether the sale of the land made under these circumstances was valid. The court below, in effect, charged the jury that the sale of land, by virtue of the certified bill of costs issued by the clerk pending the cause in which the costs accrued, and under which sale appellant claimed, was void, and this charge is held to be correct. Pasch. Dig., 6012, 6016; 42 Tex., 508; 54 Tex., 374; 56 Tex., 282.
    Subsequently to the above sale, Mrs. Oaudle, joined by her husband, conveyed her interest in the land to appellee. He forthwith filed his deed for record in the proper office, and permitted it to remain therein for some time, when he withdrew it. After about twelve months he discovered his mistake about the record of the deed, when he then had it properly recorded. During this time the case of Arnold v, Caudle was reversed by the supreme court, and all costs of both the lower and the supreme court adjudged against plaintiffs. A final judgment had also been rendered in the court below, upon which an execution issued, and the land was again sold, and again purchased by appellant, who relied, on this title also for a recovery. Judgment was rendered for appellant for one-fourth of the land.
   Opinion.— Held, the court below properly held that there could be no constructive notice, as the deed was not recorded, and also gave a fair and proper charge as to actual notice by appellant of the deed from Mrs. Caudle and husband to appellee. The jury having found against appellant, and their verdict having evidence to sustain it, it will not be disturbed.

Affirmed.  