| Tex. | Jul 1, 1857
The appellee, Charles Stephanes, files his petition to set aside a Sheriff’s sale of a lot owned by him in Houston, at which sale H. H. Allen was the purchaser ; S. L. Allen, claiming from the said H. H. Allen by a subsequent conveyance, and J. B. Hogan, the oilier defendant, being Sheriff at the time of the sale. The plaintiff alleges that the sale was not fairly made ; that it was by fraud and collusion between these defendants ; that the subsequent conveyance to S. L. Allen was a mere trick and contrivance; the whole proceeding from the beginning being a mere fraudulent, collusive scheme, by which to defeat the title of the plaintiff, and deprive him of his property.
The law of the case was fully explained in the charge of the Court, and the jury having found for the plaintiff, the defendant S. L. Allen alone has appealed, and assigns that the Court erred—
1st. In sustaining plaintiff’s exceptions to that part of defendant’s answer, pleading the judgment in the former suit between the same parties touching the same subject matter, in bar of a recovery in this suit.
2d. In the charge to the jury.
3d. In overruling defendant’s motion for a new trial.
The previous suit, referred to in the first assignment, was one brought by the present plaintiff against S. L. Allen alone, being an action of trespass to try the title, in which there was judgment for the defendant.
This action is between the same parties that were in the former suit, but there are also other parties defendant, who were not in the former. If the present action be regarded as equivalent to an action of trespass to try the title,—and the result shows that by no species of action could the title be more effectually divested out of one party and vested in the other,—then the former recovery is no bar to the present action. (Art. 3226, Hart. Dig.) In the States in which the distinction between the Common Law and Chancery jurisdiction is
The second assignment, that the Court erred in its charge to the jury, specifies no particular error as a ground of complaint. It is objectionable on this ground, the charge being full, and embracing several legal propositions. But this assignment has not been insisted upon by the appellant, from some apprehension that as the objection to the charge was not made a ground in the motion for a new trial, it would not be heard in the Supreme Court. This would, perhaps, be a correct rule; but, so far, it is believed not to have been sanctioned in practice. No judgment will be reversed in this Court, on the ground that the verdict is not supported by the evidence, unless there had been a motion for a new trial in the Court below; but the rule has not been extended, it is conceived, to errors in the charges of the Court.
The appellant has indicated his opinion that the charge is not in accordance with the principles established in the case of James v. Fulcrod. (5 Tex. R. 512.) But this is believed to be a mistake. The general rule is, that an agreement not to bid at a public auction, is void, as against public policy, and tending to fraud, and that no party to such agreement can claim any benefit from it or from the sale ; but there are exceptions to the rule. These are specified in some detail in the case of Jones v. Fulcrod ; and the Court, in its charge in this case, referred substantially to such cases of exceptions as could be claimed under the facts in evidence. Without entering into a critical examination of the propositions in the charge, we are of opinion that there was no departure from the principles established by the previous decisions of this Court.
1st. To the evidence.
2d. To the law.
3d. To the charge of the Court.
The first ground, viz.: that the verdict was contrary to the evidence, is the only one requiring notice.
The counsel for appellee has collated with much industry, numerous cases from our previous decisions, to establish the proposition that where there is a conflict of evidence the verdict of the jury will not be disturbed. He insists that the question of fraud, raised by the pleadings, was one of fact peculiarly within the province of the jury ; that the issue was fairly presented to them, and that their verdict is fully sustained by the proof.
The counsel for appellant contends that the verdict is wholly unsupported by the evidence ; and as such he claims that it should be set aside.
It is not my intention to go through the whole of this evidence, to refer in detail to all the facts which might be regarded as badges of fraud, or which might be explained consistently with an honest purpose.
It will suffice to say, that there are circumstances from which the jury might infer such fraud as would invalidate the sale. It is true, that neither juries nor Courts are to be allowed to annul or disregard rights acquired under private or public sale, from the fact that all the circumstances attending them may not, when years have elapsed, be susceptible of satisisfactory explanation. But in this case there are some marked features indicative of fraud, which support the verdict, and against the force of which the Court would not be authorized to set it aside. In the first place, the inadequacy of price paid was enormous, not amounting to more than one-twentieth of the value, as proven by a witness, which that witness was willing,
The jury, from the evidence, may have inferred that the sale was postponed with the fraudulent design' of having the sale made when none but the parties implicated in the fraud were present, at least none intending to bid, and when those who had come with that intention had left the ground. The witness, who was willing to give the six hundred dollars attended at the day of sale to buy the lot, but was informed that the sale had been adjourned, and he left.
There are also other circumstances from which the jury might infer that the sale was not fairly made. We cannot
Judgment affirmed.