53 Tex. 213 | Tex. | 1880
So much of the answer of witness Masterson, in which he says that he knew that Driscal,
The pleadings of plaintiff Driscal were sufficient to entitle him to recover upon his title derived through the second sheriff’s sale, if the first was invalid because made upon a legal holiday.
The validity, however, of the first sale was not put in issue by Munger, the defendant in execution, and who is not a party to this suit, and therefore the rights of the present parties will be decided upon the facts connected with the first sale. It is not disputed, even by the testimony of defendant Morris himself, but that he bid in the land for Driscal, and it was thus understood by the deputy sheriff who made the sale.
This purchase then enured to the benefit of Driscal, and the title of Morris was held in trust for him. Morris sought to avoid this, by alleging substantially that a short time before the sale of the land in March, 1875, he, Morris, agreed with Driscal to attend the sale and buy the land, and if Driscal within a reasonable time thereafter paid the cost of the sale, that Morris would have the deed made to him. That in accordance with this agreement Morris did attend the sale, and bid in the land, and that after Driscal was notified of the sale he refused to comply with the bid, and Morris then had the deed made in his own name. In several amendments, Morris further alleged that Driscal had waived whatever right he might have acquired by said sale, and had procured a second sale of the land under another execution upon the same judgment at which he purchased the land.
In reply to this, Driscal alleged he never intended to abandon his right to said land, but believing that the first sale was
The testimony did not sustain the above allegations made by Morris to defeat the rights of Driscal. That most directly bearing upon it was a communication made to Masterson, attorney for Driscal, by Morris himself, several weeks after the sale, in which he states: “I wrote to you nearly a month ago in regard to the sale of the Escabar land oil an execution against S. S. Munger, and cannot hear from you. I would like an early reply as to what you are going to do, and if you are not going to take the land, I will pay the money and take it myself. The sheriff is hurrying me up as he is compelled to make return of the execution.”
Under the facts as thus disclosed by the record, there was error calculated to mislead the jury in subdivisions three and four of the charge of the learned judge below, in which he submitted to the jury the above issue raised by the pleadings of defendant Morris, but which he failed to sustain by evidence. McGreal v. Wilson, 9 Tex., 426; Earle v. Thompson, 14 Tex., 583; Austin v. Talk, 20 Tex., 164; Andrews v. Smithwick, 20 Tex., 118; Hutchins v. Masterson, 46 Tex., 553; Cravens v. Wilson, 48 Tex., 343.
Under the testimony, the fact that Driscal had the land sold the second time under another execution, did not, as between the parties to this suit, create an estoppel against him in favor of Morris. The rights of Morris, if any, accrued before this second sale, and he was not thereby induced to change his former condition, or incur any additional liability. Love v. Barber, 17 Tex., 312; Burleson v. Burleson, 28 Tex., 415; Pickard v. Sears, 33 Eng. C. L. R., 117.
If, under the testimony, the rights of Morris had depended upon the abandonment by Driscal of the first sale, then the issuance of the second execution and the sale thereunder, if not explained, might have been a circumstance tending to show such abandonment, but was not sufficient to create an estoppel.
This alleged error is as follows: “The court erred in refusing to give plaintiff’s written instructions to the jury on the trial of this cause, which said instructions were numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11, as shown by his bill of exception number 1.”
Bill of exception number 1 merely recites that plaintiff requested the court to give to the jury these instructions, which the court declined to do, and to which plaintiff excepted.
This assignment does not so definitely specify under the statute and rules of the court, the errors relied upon, as that the plaintiffs in error can demand, as a matter of right, that we pass upon them. Pasch. Dig., art. 1591; R. S., art. 1037; Rules 24, 25, 26; Pearson v. Flanagan, 52 Tex., 266.
The present rules upon this subject are but the enunciation substantially of former repeated decisions of this court. Fisk v. Wilson, 15 Tex., 435; Howard v. Colquhoun, 28 Tex., 134; Ellis v. McKinley, 33 Tex., 675; Wright v. Hays, 34 Tex., 253: Lumpkin v. Merrill, 46 Tex., 51; Atcheson v. Hutchinson, 51 Tex., 223; Clements v. Hearne, 45 Tex., 415.
The rule of practice followed by this court, is that laid down in the above case of Fisk v. Wilson, in which it is said that “ where the assignment of errors indicates no particular charge or ruling of the court upon instruction which is complained of, but refers in general terms to 'the several charges’ refused, and ‘ each several charge and instruction given;’ and on reference to them they are found to be numerous, this court will not deem it necessary to review them, unless the right and justice of the case may seem to demand it. * * * The object of assigning errors is to point the court and the adverse party to the particular ruling or ground of error on which the party intends to rely for reversing the judgment.” 15 Tex., 435.
Each error relied upon, thus particularly assigned separately, or appropriately grouped if several present the same point,
As the judgment will be reversed for the error in the charge shown in a previous part of the opinion, we do not think proper to exercise our discretion to see whether there are fundamental errors, involving “ the right and justice of the case,” which require that we examine the several charges asked by the plaintiff and refused by the court, as presented by the second error assigned.
Judgment reversed and cause remanded.
Reversed and remanded.
[Opinion delivered April 13, 1880.]
