56 Tex. 9 | Tex. | 1881
Hunt sued Makemson and Fisher to set aside a sheriff’s sale of two tracts of land, one of one hundred and sixty acres to Makemson for $25, the other of forty-four acres to Fisher for $15.25, had on the first Tuesday of August, 1880, by virtue of process under a judgment foreclosing a vendor’s lien on said tracts, in a suit by B. S. Bybee v. T. M. Warren. Hunt alleged that he was the owner of the judgment by purchase and transfer thereof; that the sale was made in violation of his instructions to the sheriff, and without any notice thereof on his part, and that the purchasers had notice of these facts; that, being the owner and holder of a note for $1,000 on Bybee, secured by mortgage and lien on the premises, to enforce which suit was pending, he purchased the judgment for the purpose of protect
Defendant Makemson also filed a cross bill, giving a detailed history of the claim of Makemson and Posey to own the balance due on the judgment when Hunt purchased it; also of the sale and purchase, claiming to be the owner of the land purchased, and praying to be quieted in his title; “and that all right, title and interest that plaintiff has or sets up be divested out of him and vested in said Makemson.”
The defendant Fisher also filed a separate pleading, charging plaintiff’s claim to be a cloud on his title.
The pleadings, especially those of plaintiff, were voluminous, and no attempt has been made to give many of the details or particulars on either side.
The case was tried by the court without a jury, and the judgment was for the defendants, with a decree
It appears that on the 7th of January, 1881, when the case was regularly reached on the docket for trial, the plaintiff applied for a continuance, but his application was refused as insufficient. The judge, however, postponed the case, and it was set by agreement of counsel for 22d of January, 1881. On the 22d of January the plaintiff again moved for a continuance, and his motion was again refused. His counsel refer to the statute prescribing the requisites of a first application for a continuance. We do not regard this as either a first or second continuance under the statute. The statute looks only to ordinary continuances, and seeks to regulate no other. This is certainly not an ordinary first application. Nor is it the common case of a second continuance asked for at a term subsequent to a continuance granted. It is one of those applications outside of the statute which are addressed to the discretion of the court, and in this case it is not made to appear that the court abused that discretion. No effort was made to take the depositions of the witnesses residing out of the county until after the commencement of the term and the refusal of the first application. This was not using due diligence. One witness living in the county was served with subpoena after the first application was refused, but the application fails to set out what he would testify, or to show the materiality of his testimony.
In regard to the second assignment complaining that plaintiff was refused a jury trial, it is enough to say that the demand for a jury was not made until it was too late.
Counsel for appellee say that the exclusion, if erroneous, did not prejudice appellant, because the fact that such note and mortgage were held by plaintiff was proved by other evidence. It is true, as stated, that Smith testified in court, without objection, that he gave notice at the sale on July 6, 1880, that Hunt held a note and mortgage on the land; and Smith also testified that he was Hunt’s attorney to foreclose the mortgage on the land in suit. This indirect evidence that Hunt had, or rather claimed to have, some sort of a note and mortgage, did not supply the excluded evidence. The instruments,- if admitted, would have established that he did have such a note and mortgage as he had alleged.
Again, counsel say that, “the case being tried by the court without a jury, the judgment will not be reversed as a general rule, because evidence was improperly excluded or admitted, if the final judgment reached the justice of the case.” There is a rule that, “where the judge sits to hear and decide the case without a jury, his having heard incompetent evidence would not require a reversal of the judgment when there W~as competent evidence sufficient to authorize its rendition.” Melton v. Oobb, 21 Tex., 541. The reason is that the court “would discriminate between evidence which ¡was legal and that which was not; giving the former the weight to which it was entitled, and rejecting the latter.” Id. Obviously this reason would not apply where evidence is excluded. In a case tried by the court the improper exclusion of evidence may operate as injuriously as if the trial were before a jury. In neither case will it require a reversal if it appears that no injury resulted to the party offering the evidence.
From the action of the court in excluding the mortgage, it appears probable that the court entirely disregarded
But we are very clear that the exclusion operated to Hunt’s injury in his character as defendant to Makemson’s cross action. As the holder of a junior lien by recorded mortgage he had the right to pay off the prior vendor’s lien; and whilst the exercise of that right may have been embarrassed by the foreclosure of that lien and the purchase by Makemson, the right itself was not extinguished, he not having been made, as he should have been, a party to the foreclosure proceedings. Makemson, however, in his cross action, sought to extinguish any rights Hunt had in the land. Certainly it was most material for the court to know what Hunt’s rights and interests were before divesting them out of him and vesting them in Makemson. Hunt’s proffer in his pleadings to pay Makemson and Posey’s interest in the judgment, with a little liberality might be regarded as a proffer then to pay off the prior incumbrance on the land. If he had been allowed to do this, as we think he should have been, he would then have been in a condition to enforce his own mortgage. Without pursuing the question of the respective rights of the parties further, we are of opinion that the court erred in excluding the note and mortgage; that this error operated to the prejudice of Hunt and led to an erroneous decree, requiring a reversal of the judgment as to appellee Makemson.
The land claimed by Fisher was not embraced in Hunt’s mortgage, and the exclusion of the mortgage constitutes no ground for reversal as to him. No error appearing in so much of the judgment as affects appellee Fisher, the
Reversed and remanded.