50 Tex. 383 | Tex. | 1878
Pearson claimed the land, to recover which he brought this suit, as purchaser at execution sale in 1871, under a judgment in his favor against J. W. Flanagan, of date May, 1867, and affirmed on appeal to this court in 1869. For a history of the claim on which that judgment was founded, and of further litigation in regard to it, see Flanagan v. Pearson, 42 Tex., 1. The appellants, besides claiming an undivided half interest in the land as the heirs of their mother's community interest therein, also claimed under a deed of trust from their father, J. W. Flanagan, of date April, 1868, conveying a large amount of property to A. D. Tinsley as trustee, to be held by him for the benefit of appellants, his children, the consideration expressed being an alleged indebtedness to them. In the fall of 1868, J. W. Flanagan was declared a bankrupt, and, on application of his assignee, the Bankrupt Court authorized him to release and convey the property specified in the deed of trust to the trustee, in part payment of the indebtedness ac
But the court also sustained exceptions to that part of the answer of appellants, the opposing claimants of' the land, impeaching the sale. It would seem that the court held that as they were not parties to that judgment they had no right to attack proceedings under it. This court, in the recent case of Cravens v. Wilson, has recognized a more liberal rule, allowing other parties interested in the subject-matter of the sale, and interested in its being sold for a fair price, so as to
The position of appellants is not that of adverse claimants of property levied on, seeking to avail themselves of mere irregularities in the execution. Their position is, that property in which they were interested has been sacrificed in such a way as to amount to a fraud, and to their injury. Our opinion is that the court erred in refusing to entertain that part of the answer or cross-bill seeking to have the sale set aside.
As this conclusion requires a reversal of the judgment, we do not feel called on at this stage of the case to consider other questions which possibly may not again arise.
The judgment is reversed and the cause remanded.
Reversed and remanded.