38 Tex. 156 | Tex. | 1873
This suit was brought by the intestate of the appellant to recover the land described in the petition, being a part of the headright of Rachel Baker, deceased. The plaintiff notified the defendant that he claimed title from a common source, and both parties claim through James M. Bumpass. The plaintiff claimed under a deed from Bumpass, dated February 16, 1867. The defendant claims under a constable’s deed dated August 7, 1867. To support his title under-this deed, he offered a judgment dated December 13, 1861, against Bumpass and in favor of one Hansell; also an execution and levy, under the judgment, on the thirteenth of July, 1867; but there is no return of a sale made under the execution.
The defendant, however, offered verbal evidence to prove that a sale was actually made, and the money applied to the Hansell judgment. In rebuttal the plaintiff
It is claimed that' the judgment in favor of Hansell was void, because rendered in 1861, subsequent to the passage of the first stay law. These laws, however, were declared by this court to be unconstitutional, in the sequestration cases, 30 Texas, 706.
To our minds it is doubtful whether a sale under execution can be proved by parol, where the sheriff’s or constable’s return does not show that a sale was actually made. Where so important a matter in making title under a sheriff’s sale is omitted, we cannot see how a subsequent purchaser could be affected by notice of such a title, where the record does not show that the most important matter in such a transfer of title has been legally effected.
If then a subsequent purchaser would not lose his title for want of notice, it would seem difficult to hold that a prior purchaser should not take a good title where a subsequent purchaser would. This question, however, is not raised on the briefs, nor was it made to the court; we will not therefore decide it until the profession may have an opportunity of discussing it.
But if the defendant were permitted to help out his title by parol proof, we see no good reason why the appellant might not, under the pleadings of this case, have been permitted to offer in rebuttal evidence going to show the irregularity and fraudulent character of the sale.
In Howard v. North, 5 Texas, 310, this court say: “ Where the time and place of a public sale are prescribed by law, the sheriff has no authority to sell at any other time or place; and should he do so, his acts are not merely irregular, but void, and confer no title.”
The law prescribed that judicial sales should be made
We think the court erred in ruling out the plaintiff’s evidence. Such evidence may be. very material in a case, and we think the law regulating judicial sales should be strictly pursued.
If ministerial officers are allowed to delay their sales beyond judicial hours, or sell at an hour earlier than that appointed by law, such a practice might give rise to favoritism and fraud. And if, in addition to the fact that a sale has been so made, it appears that the property has sold for a grossly inadequate consideration — such as twenty dollars for property worth ten or twelve hundred dollars — these circumstances would furnish strong evidence, if not fully explained, from which a jury would infer fraud. Under the view we have taken of this case it is unnecessary to notice further the bills of exception or the errors assigned.
The judgment of the District Court is reversed and the cause remanded.
Reversed and remanded.
