51 Tex. 223 | Tex. | 1879
D. D. Atcheson brought this suit to set aside an execution sale of sundry tracts of land to Hutchison and the other defendants and to cancel the deeds made to them by the sheriff. The grounds on which the sale was attacked were: 1st. That the execution was controlled by Hutchison and the other purchasers, and was issued in violation of a binding agreement. 2d. That the levy was made in disregard of his right to point out property, and in disregard of the statute regulating the order in which property of different kinds is to be levied on. 3d. That the levy was excessive and oppressive. 4th. That the price at which the lands were sold was grossly inadequate, alleging a conspiracy between defendants to procure his lands at a nominal price. No question was made below, or is made here, that the necessary parties were not all before the court; nor are any questions presented requiring a fuller statement of the pleadings. The trial resulted in a verdict and judgment for defendants.
The facts developed on the trial, so far as they are material to the questions to be passed upon, are as follows: On February 13, 1874, Bateman and others recovered in the District Court of Grimes county a judgment against one Taliaferro, as principal, and Atcheson, as surety, for the sum
“ $1,050. Galveston, Texas, March 3,1875.
“ Three months after date pay to the order of myself one' thousand and fifty dollars, value received, and charge to account, with interest at twelve per cent, per annum after maturity. (Signed) Danl. D. Atcheson.
“To Wolston, Wells & Vidor, Galveston.”
On the face of this draft is written: “Accepted. Wolston,. Wells & Vidor.”
“ Galveston, March 3, 1875.
“Whereas on the 3d day of March, 1875, Wolston, Wells; & Vidor advanced for D. D. Atcheson to me, as attorney for-the plaintiffs in the judgment of R L. Heflin and others-against D. D. Atcheson and others, obtained in the District Court of Grimes county, said amount not to be credited on-said judgment, but to pass to them (Wolston, Wells & Vidor) one thousand dollars interest with the other plaintiffs in said judgment, to bear the interest that the judgment bears from this daté: Now, I agree and contract that if in. ninety days;
(Signed) J. G. Hutchison.
“ P. S. When Atcheson refunds the $1,000 to W., W. & V., he is to have credit of that amount on the judgment.
(Signed) J. 0. Hutchison.”
Also the following:
“ In consideration of the payment of one thousand dollars by Wolston, Wells & Vidor to me, I hereby agree that execution issue on that certain judgment obtained by E. L. Heflin and others against me at the February Term, 1874, of the District Court in and for the county of Grimes, State of Texas, in ninety days from the date hereof; provided, nevertheless, that if I pay to the said Wolston, Wells & Vidor said sum of one thousand dollars on or before the expiration of said ninety days, then this agreement to be void; otherwise to remain in full force and effect.
“ Galveston, March 3,1875.
(Signed) Danl. D. Atcheson.”
The only other evidence bearing on the subject of the payment by Atcheson, was Hutchison’s testimony that Atcheson
The sheriff testified that he went to Atcheson’s, which is one mile north of Havasota, three times to get a levy, but found him away, — once on the 21st of June, and again on July 7. Other witnesses testify to two visits of the sheriff to Atcheson’s house, seeking a levy, and it appears that Atcheson was informed of the fact of his having been there for that purpose, and that Atcheson returned to his house from Galveston on July 9. A witness testified that Atcheson usually went to Havasota every day, and could have been found by any one inquiring for him. This witness testified about four mules owned by Atcheson, of which he informed the sheriff, but knew of no other personal property.
The levy was made on July 12, without, on that day, going to Atcheson’s or inquiring for him, on land pointed out by the attorney for the plaintiffs in execution, and recites that the sheriff went on two separate occasions to the residence of Atcheson, found him absent from the county, and found no personal property on which to levy. The levy was on eight hundred and forty-eight acres of the Campbell league, sold to Templeman, one of the defendants in this case, for $155 ; forty acres sold to defendant Hutchison for $200 ; two hundred and four acres of the Whiteside league to Hutchison for $93.89; two hundred and four acres out of east half of Arnold league, sold to Hutchison for $75.48; and seven hundred and thirty-two acres of the west half of the Arnold league, sold to Owen and Hutchison for $732. The evidence is that this last tract of land was valuable; some of the witnesses say worth $15 per acre; but some of the same witnesses say that at sheriff’s sale it might not sell for $5 per acre, and one witness says at such sale it might sell from $1 to $5 per acre. There was on it about two hundred acres of open land,
On the day of sale, Atcheson warned purchasers not to buy, claiming that the levy was irregular and that the purchaser would get no title. On the other hand, Hutchison testified that he tried to make the lands bring a good price, and other witnesses testify that he staked his professional reputation that the title was good. Several witnesses testify that Atcheson’s action at the sale tended to depress the prices, and that Hutchison did all he could to encourage persons to bid. It appears, however, that at the time of the sale a suit was pending, brought to June Term, 1874, in behalf of Bate-man, Heflin, and others, the parties who had recovered the judgment against Taliaferro and Atcheson, to satisfy which the sale was had, in which Atcheson’s title to the seven hundred and thirty-two acre tract was assailed, and that this suit was brought by Hutchison as attorney. The papers and proceedings in several cases were introduced in evidence by Atcheson, constituting a large part of the record. From these it may be gathered that in 1862 Atcheson, owning the west half of the Arnold league, including the seven hundred and thirty-two acres in question, made a verbal sale thereof to Chester A. Bulkley for $50,000, of which Bulkley at some time paid $25,000 in Confederate money. On January 1,1874, Atcheson conveyed the half league to Clara Y. Bulkley, wife of said Chester Bulkley, the consideration expressed being five joint notes of said Chester and Clara, each for $5,000, and-payable in one, two, three, four, and five years. In Febru
There is no evidence, save that already detailed, that Atcheson had persona] property or wild lands subject to execution. Whilst in Galveston, having been informed by his son of the sheriff’s demand for levy, he wrote, inclosing a paper pointing out for levy the part of the west half of the Arnold and another tract, both embraced in the levy made, but requiring that the sale be in tracts of forty acres. The son did not see the sheriff or notify him of the levy pointed out, and it does not appear that the sheriff' had any notice thereof, or of Atcheson’s wish to have the sale in tracts of forty acres. The charge of the court was, in effect, that if Atcheson paid the $1,000 on or before March 1, 1875, or substantially complied with his agreement, then the execution was illegally issued. The charge then proceeds: “ To entitle the plaintiff to set aside the sale, if made under a legal judgment and execution and the defendants have paid the purchase-money, it devolves upon him lo show fraud on the part of the defendants, or such excessive levy, or such inadequacy of price, together with circumstances of unfairness on the part of defendants as amount to fraud. Mere inadequacy of price, even if very gross, is not, of itself, sufficient evidence of fraud; but where the price is grossly inadequate without plaintiff’s fault, then but slight evidence of fraud or collusion on the part of the purchaser would be sufficient to set aside the sale. In determining whether the levy was excessive and whether the price was inadequate, it is proper to consider any embarrassments and suspicions that the plaintiff himself may have
The case went to the jury with this charge, no additional instructions being asked. After the verdict for defendants, plaintiff" moved for a new trial: 1st. Because of an error of the coui’t in permitting the sheriff" to amend his return on the execution. The record shows nothing of any such action of the court. 2d. Because the court erred in its charge as to the agreement filed in the cause. 3d. Because the court in effect charged that plaintiff could not maintain his action against the defendants before first having tendered and paid the purchase-money. 4th. Because the court misled the jury in the charge as to the rights of the defendant in execution to point out property, and should have charged in the language of the statute. 5th. For causes assigned in a motion against the sheriff in another cause, which motion does not appear in this record.
There is a bill of exceptions to the exclusion of evidence of the value of land adjoining the seven hundred and thirty-two acre tract, and the refusal to allow a witness to testify that the seven hundred and thirty-two acre tract, if divided into forty-acre tracts, would sell for a larger sum, and in the statement of facts is the following: “Plaintiff offered to show
The assignment of errors is as follows:
“ 1st. The court erred in all its instructions embraced in the charge to the jury.
“2d. Motion for new trial. The causes assigned in said motion are assigned as error, the same being overruled by the court. The court erred in not allowing the plaintiff to introduce evidence as contained in plaintiff’s bill of exceptions set forth, and as also noticed in the statement of facts.
“3d. Plaintiff assigns as error that the judgment shows on its face illegality, as fully appeal's from the execution under and by virtue of [which] the lands were sold by the sheriff on 3d of August, 1875.”
The indefiniteness of these assignments of error is such, that this case might have been disposed of with hut little investigation. The evident fact, however, that a tract of land worth ten or twelve thousand dollars has been sold at execution sale for $732, has led us to give the assignment of errors the most liberal construction, and has induced us to give to the entire case a careful and repeated examination. Certainly, if such a result has ensued from a sale under an execution issued irregularly and in violation of the agreement of the parties, or from a levy either oppressive and excessive, or otherwise in disregard of the legal rights of the execution debtor, a strong case would he presented for setting the sale aside. The first question in the case is, Was the execution issued in violation of the agreement? We have seen that the charge of the court submitted to the jury the question whether Atcheson had paid the $1,000, or had substantially complied with his agreement. Appellant claims that there is fundamental error in this charge, in that the court should have construed the legal effect of the various instruments, and told the jury that they showed a payment of the $1,000. We think that the draft, the instrument signed by Hutchison,
The third proposition made by appellant is, that the court erred in its charge as to the right of the defendant in execution to point out property. The charge of the court submitted to the jury whether the sheriff" had made reasonable inquiry and search for defendant before he made the levy. The evidence justified the jury in their verdict that he had. The evidence shows that reasonable opportunity was afforded plaintiff" to point out property, and this, we think, is all he was entitled to under the statute and the decisions. (Cook v. De La Garza, 13 Tex., 431; Kendrick v. Rice, 16 Tex., 259; Paschal’s Dig., art. 3775.) When Atcheson met the sheriff, it does not appear that he claimed his privilege of pointing out property; nor does it appear that he had personal property or other lands which should have been first levied on.
It is evident that the seven hundred and thirty-two acres of land was sold for less than one-tenth of its value. But it is plain also that the action of the plaintiff at the sale tended to produce that result. If, as he claimed, the execution was irregularly issued and the levy was illegally made, then he might claim that he was justified in his course in forbidding the sale, and that for those irregularities and for the inadequacy of the price the sale should have been set aside. But the verdict of the jury settles these points against him, and the evidence is, we think, sufficient to authorize the verdict. The inadequacy of price, if brought about by his own imprudent objections at the sale, would certainly be, of itself, an insufficient ground for setting the sale aside.
In regard to the evidence excluded, there was no error. The value of an adjacent tract of land was immaterial, there being direct evidence of the value of the land sold, to which it was adjacent. If it had appeared that the plaintiff had demanded and been refused a sale in tracts of forty acres, it
However much it is to be regretted that the property of the debtor should be sold under execution for a price so inadequate, we are well satisfied that, under the rules of law applicable to the case as presented to us, the judgment should be affirmed.
Affirmed.