*1 ' n y. Tes.) MOORE MILLER ty attempting only an appellant's entitled to have the sale set aside case in such portion a claimed of them im- render it preserving injunction court to consider the value of all lots to the inadequacy proper ap- when the matter as
status arrive at a conclusion as to perfected, peal ordered price. injunction cases, Execution, issue. [Ed. Note.—For other see such Dig. 723-733; Dig. Cent. §§ § Dec. 256.*] (§ 256*) Setting 7. Execution Aside Sale — —Outstanding Title. party suing Where for land claimed un- al.† et v. MILLER MOORE prove an der but set execution sale does not Appeals San Anto (Court of Texas. Civil defendant on cross-action has the sale 19, On Motion 1913. nio. Feb. aside, the mere fact there were other 1913.) Rehearing, March parties claiming property give plaintiff grounds complaint. — — (§ 256*) Cancella Fraud Execution 1. cases, Execution, [Ed. Note.—For Sale. see tion of Execution Dig. 723-733; Dig. Cent. §§ .§ 256.*] fact that defendants were Dec. b? sold a number of lots were 257*) (§ 8. Execution in Sale —Set —Fraud directly prohibit- bulk, as an execution sale in ting Aside Sale —Effect. (Sayles’ St. art. 3753 ed Rev. Civ. party claiming Where a number of lots 2362), and no notice Ann. art. Civ. St. brought under an execution sale action given required sale, Rev. Civ. lots, defendants for such the defendants (Sayles’ Ann. St. gross art. 3757 St. only prayed of them and 2366), in- art. taken in connection with cancellation of the constable’s deed on the adequacy can- are a sufficient basis for ground fendants fraudulent, the sale was and de- of the sale. cellation prevailed, plaintiff also lost all cases, Execution, see [Ed. Note.—For other title to the lots not claimed defendants. Dig. Dig. 723-733; 256.*] § Dec. §§ Cent. cases, Execution, [Ed. Note.—For other see n (§256*) Sale—Setting Aside 2. Execution Dig. 734, 735; Dig. — Cent. §§ Dec. § 257.*] —Inadequacy Equity—Tendee of Price — Appeal (§ 742*) Assignments 9. and Error of Indebtedness. — Error —Statements. has at execution Where been sold inadequate equi very An which has no statement sale at a proposition, except aside, a reference will set the sale where defendant indebtedness, prompt pay1- assignment, statement under some other makes a offer to will costs, be reviewed. and interest. cases, Execution, [Ed. Note.—For other see cases, Appeal [Ed. Note.—For other see 723-733; Dig. Dig. Error, Dig. 256.*] Cent. Dec. Dig. §§ § Cent. § 742.*] Dec. § Findings Jury 352*) Special (§ Appeal 3. Trial — — 1073*) 10. and Error <§ —Harmless —Form. Judgment. Error —Form of jury, propounding questions to the party given Where you you, evidence,” '‘Do find from the and “Do to, more land than he was entitled but dis- n ordo you evidence,” not, was not find from the right part claimed his entitled to such as he was not erroneous, form, since issues be submitted to, prejudiced the other was not long as free from indication on thereby. as to issue should how the cases, Appeal [Ed. Note.—For other see determined; questions to be witnesses not the rules as to Error, 1073.*] Dig. 4240-4247; Dig. Cent. §§ Dec. § being applicable to the submis- questions jury. sion of to a Trial, cases, Equity [Ed. Note.—For other (§ see Cent. 88*) 11. —Laches. Dig. Dig. 840-842, §§ § 352.*] Dee. Laches or stale demand must be party invoking order to avail a it. 256*) (§ 4. Execution to Set Aside —Action —Fraud—Allegations—Sufficiency. cases, Equity, [Ed. Note.—For other see Cent. Dig. Dig; Allegations §§ Dec. § W. conceived the idea of conspiring instituting with suit- at- (§ 256*) 12. Execution —Sale—Action taching co-operated by taking property, that H. Set Aside —Laches. pa- daily the affidavit of the party living A out of the state and served per publishing co-operat- citation, and was by publication having legal notice of a ing, conspiring, confederating with the said sale under execution was excused from insti- purpose clouding M. for and de- tuting a suit to have it set aside until several stroying property, defendants’ title to sufficient- years later, brought by when action was ly charged conspiracy three, between the in an purchaser at such sale. n action attacking validity of the sale. Execution, [Ed. Note.—For other see Execution, [Ed. Note.—For other Dig. Dig. § 256.*] § 256.*] (§ 106*.) Conspiracy— n 13. Evidence Char (§ 256*) Setting — Execution Aside Sale — acter Evidence. —Issues—Instructions. charged Where an administrator was with preposterous It would have been have and another to fraud- submitted an issue to the was a fair and reasonable whether $138 ulently estate, land of the obtain evidence of «$20,000 removing rendering judgment him decree worth of sold at tending against his him was admissible to show though there were claims it for probably character, that he would enter $1,800. alleged. conspiracy, as into a Execution, [Ed. Note.—For other eases, Evidence, Cent § 256.*] 177-187; Dec. §§’ n 6.Execution -(§256*) Sale—Setting Aside — —Inadequacy 232*) Objections and Error <§ of Price —Elements Consider. to Evidence —Review. only objection large Where a Where the evidence constable sold a number par- was that it was irrelevant and lots at an execution trial court the fact that a Dig. Key-No. Rep’r & topic other oases see same anfl & Am. Series *For section NUMBER in Dec. Indexes † Supreme writ error denied Court. *2 REPORTER 155 SOUTHWESTERN (§ 128*) objection consid- can be immaterial, ered on 22.Justices Peace no other —Juris Judgment Setting appeal. Aside diction— — District Court. Appeal cases, see other [Ed. Note.—For jus- aof A suit to set aside a 1368, 1430, n try Dig. Error, §§ Cent. peace trespass title was tice of the Dig. 232.*] Dec. § brought properly court. in the district Try (§ Trespass 35*) Allega cases, 402-467; 15. Title [Ed. Note.—For other see Justices — Dig. Dig. Peace, § Dec. and Proof. Cent. tions §§ try trespass the land where In 128.*] sale, defend- a constable’s claimed under ant of a Appeal County; alleges Court, on account fraudulent from have been District Bexar H., conspiracy between the Seeligson, Judge. Arthur W. estate, and who was of an the administrator holding allow against Action J. M. B. H. Moore Miller time, land at the Judgment defendants, and others. proof an administrator. that H. was plaintiff appeals. Affirmed. Trespass cases, see other Note.—For [Ed. Dig. Dig. 50-52; Try Title, § Dec. §§ Cent. Routledge, Walling, James W. W. 35.*] ap- Wash, Antonio, Frank H. pellant. San Appeal (§ 742*) Assign and Error Lane, Davis, — P. F. Ben C. Webb of Error —Statements. ments appellees. Goeth, Antonio, & all of San Assignments state- of error not followed considered, and an omnibus ments statement verse rules. will be referring to di- history FLY, J. this case to a C. subjects meet the of evidence does not opinion fully certain date set forth in the Moore, of this in Hallam court found cases, [Ed. see Note.—For Cent. Dig. Dig. which a consolidation of this Error, § 742.*] Dec. § case with others was set aside and the dis- 256*) (§ 17. Execution —Sale—Action try separately trict court ordered to Inadequacy of Price —Fraud Set Aside — pursuance —Evidence. the others. of that order the trespass try On a cross-action in title consolidation of the suits was canceled and plain- sale, have a to tiff was constable’s under which appellant up setting petition, filed an amended ground claiming, set aside on the statutory trespass try price,' action of fraud and the evidence plaintiff, sale, subse- city certain lots of land of San An- quently accept debt, interest, refused to against tonio as band, Marie B. Miller and hus- costs was admissible to show bad faith. Allardyce Miller, Charles Annie H. cases, Execution, [Ed. see husband, George Allardyce, H. E. Barn- Dig. 723-733; Dig. § 256.*] Cent. Dec. §§ Appellees ard, general guilty Jr. n (§256*) 18. Execution Sale- —Execution up denial, and set a cross-action Fraud —Evidence. against appellant land, alleging newspa- affidavit per, an es- taken the administrator of May 15, 1897, H. E. Barnard died on or about par- tate, half of which was the leaving attempted a will which by publication, evi- was admissible in separate property large portion as his dence, in an action to set aside the execution community at the sale as tend- the estate of himself and his fraud; purchaser having ing to show such been wife, Barnard, Allardyce, H. Annie now to have with such been sought dispose property by of said administrator’. will; Allardyce that said Annie H. success- Execution, [Ed. Note.—For other see fully attempt contested and nullified said Dig. Dig. Cent. §§ § 256.*] Dec. will; Floyd qualified said McGown Rehearing. independent will, resign- On Motion for executor of said hut ed, May 23, 1901, Hambleton, T. and John Day (§ 9*) Excluding Time First —Ex (cid:127) qualified as administrator of the estate with- ecution —Notice. publication The first an annexed, charge and took the en- will days sale; of land should the date full before the Barnard, deceased, and tire estate of H. E. counted. the same to his use and bene- converted fit; own eases, Time, [Ed. Note.—For other see Allardyce and the said Annie insti- 9.*] § him, to remove tuted 345*) (§ 20. Execution —Sale—Deeds—Re Walling, during said administration W.'W. turn— Conflict — Construction. attorney conspiring appellant, Where there is conflict between a sher- return, iff’s deed the recitals in the deed administrator, the her, instituted always control. attachment a writ of and caused Execution, [Ed. Note.—For other property in the hands of ad- levied § appellees, ministrator, Allar- and cited (§ 258*) 21. Execution publication; dyces, by —Sale—Collateral Attack. prop- court, and the obtained erty plaintiff brings try trespass Where ti- controversy claiming an execu- tle, was sold under under an execution and de- judgment, fendants tender the amount of although out of said tion issued attempt fraud, sale for such to set aside the administrator; hands of the attempt tack direct, collateral, is a at- knowledge had full who at sold to the sale. totally inadequate facts, Execution, Note.—For other agreed by price; con- it had been Rep’r Dig. Key-No. topic & Indexes Series &Am. in Deo. other oases and section NUMBER *For Ter.) MOORE v. MILLER buy complain spirators clusive, insufficiency one constable should pur- lots, evidence to irregularity lots were fraud said more of the wife, aft- but were the sale. The evidence that Wall- the constable’s showed
chased ing, prop- Moore, appellant; the administrator of the es- erwards transferred *3 tate, $10,000 Hambleton, erty building of more than offices a the value occupied by daily Light, $138, the San was unconscionable. Antonio a sold for which prin- debt, paper; the that Moore was alleged that all with the further connected paper; Allardyces by interest, amount that cipal, not and costs did the were cited court, publication, published being $250, into the sum was tendered same the and that Light; should if such sum that Moore made and that an affidavit as to it was ready, appellees Hambleton, will- the not ing, were adminis- be sufficient trator, pay notary public, found and such sum also Walling that and able Allardyee, and, adminis- had a claim that the Mrs. be due. brought and against her, closed after ferred the interest had been suit estate the trans- tration the acquired the all appellees the owners Moore and became being controversy a land property, bought the from that in Moore. He they prayed can- the for land in same, for Moore. and The latter was of the judgment Walling. and justice’s by indebted to court Deeds were made of the cellation all submitted upon Walling parties, cause thereunder. Moore lots to and other issues, and, jury upon special Walling expressed were recorded. ato thereto, by responses judgment indifference to what lots were taken land, Moore, appellees for the or whether in favor of worth $75 rendered by $75,000. issued attachment One deed was writ of to Mamie Wil- and made that canceled, deputy kens, and that justice’s constable, court be wife the Charles and one by Stevens, constable, aside the wife of the constable be sales made naught; Routledge, out $210 one to Edwin A. held one to G. his deeds appel- paid Monroe, employed deposited by in court be who was afterwards the $250 receipt Light. lant, Walling his knew adminis- that the justice’s aside pending, be set court tration the estate was did the nothing price paid canceled; take Moore. The lots at cent, per costs of execution sale was not of their con through a land Appellant value. made deed, rule, December dated [1] The as stated in Flan stable’s by Pearson v. justice’s agan, thority, weight from an execution virtue of 52 Tex. is: of au “The judg county, a court, issued under including court of Bexar ment that of of is that this Walling styled inadequacy itself, W. W. in a cause mere sufficient to set aside George Allardyee D. Allar- a Annie dyce; sheriff's other property, having valid; gross inadequacy bid for been $138 wise city large number slight which consisted in connection with additional ques response to In showing fraud, irregularity, Antonio. lots San facts circumstances calculated prop found prevent tions reasonable the property at erty something market bringing rea like its from $21,500, an un might value, it was sold This time avoid the sale.” sonable sum, half worth particular it was applies half of divided that W. T. Hambleton gether force when rule Moore, and John Walling, H. J. W. assisted the cir bringing about conspired to buyer colluded cumstances sale. at the execution bringing property keep a from price adequate constable’s strongly fair and Taul The rule is stated more deputy were sale; approved the constable Wright, which is v. House conspiracy; parties because Robertson, S. proper conspiracy the the collusion In former case the court said: adequate price; may fair and though bring valid, if the “And excluding evidence, that as impossible precise that from all be to determine the limit property conspiracy, to collusion price at which mere authorize alone will price. bring adequate setting fair and judicial not answers were aside a considering the still it cannot be denied that there be price lien on was an attachment paid utterly fact that cases which the is so property out another insignificant shockingly disproportionate sued party, there was a of some of property and that to the value court of judg another as, conscience, cannot Upon findings whatever, those the court $22. ment for consideration attempting fact of mere appellees judgment for rendered to hold so 83% Antonio, fully in San which are lots of land will be held conclusive fraud. evidence of by appel described, Certainly, equacy lots claimed when there is an enormous inad lant virtue constable’s deed under sheriff’s if there Allardyce. Walling slight irregularities in case of are but or other circum assignments attending prevent in- error from 1 to stances calculated to REPORTER 155 SOUTHWESTERN 57G were instead of error derson, has been 41 S. justice’s court, cient Tex. Steffens Tex. herein town connection (Sup.) form- these S. W. evidence, arately ; the statute Stats. edged only or Light. and the cause the Stevens, court publication, of the bleton, appellant, issuing rights sideration the be a court sale inadequate, and, perhaps, to be worth reasonable needs celed.” son the land scientious erty [3] [2] prompt Not held the San evidence,” trial, irregularities given Civ. were there aside, The tenth and submitted; W. 520. stands administrator under execution. a sufficient R. S. Appellees omissions are sum to sold suit make the affidavit 2362), 20 S. W. will set of only narrated, as No transfer of purchased, of and In the cited case assail the form in sufficiently inadequate and Edwin court. city and to authorize App. argument offer held that where equity notary in 1911; with affirmed Jackson, (article value, when did alone, but which executing Antonio was sold at Walling, appeared $S00, it also form shall be offered it plaintiffs pay bulk, aside the' Civ. of was also connected interest, tendered bringing appeared Appellant basis for cancellation should have while not gross deeds to committed tending to interfere Sayles taken action public, it is property was off being, requires to show that considered, and, and the suspicious Routledge of the Barnard in absolute defiance of the sale. Martin v. An appeared manager thirteenth Glasscock v. contention Daily Light S. W. 838. on the docket the defendant makes point inadequacy citation before off the that cause his deed will herein.” $25, regarded notary Wilson v. Stats. 2366. in connection Moore v. R. S. was transferred of House required into something “Do Mrs. who at that also that sufficient of which court to set to hold process, court said: in been, inadequacy and costs;, were you and circumstances Wilkens, indebtedness, the 1911; to call assignments public. question, being that, lots such a con enormously any, citation protect the issues sacrificed, App. find Perry, v. Robert testify Price, fraud, in was officers no notice “Do publisher swore with the acknowl taken justice’s the lots it .must Swasey like its a suffi have and it of the er article Sayles co-operated estate, Under of the These uncon- action shown itself, Ham- from prop with nor can we you, Mrs. time sep any can Not “It 92 and 13 at in tion signment $20,000 ble, circumstances to be considered at refusing of the fair and reasonable market value of overruled. might against there are others full and the land cution, plaintiff, clouding “was among Walling, Moore, davit of the were as to the were to all estate, three about ating swer That the adopted in answer to a certain after be question the form of the form garded such matter cannot ing question ness of of no O’Farrell, or do [5, [4] conspiring $138 such determined, special presented, this suit jury; and the fourteenth complaint 6] The submitted an issue of apply cannot returned to the other three. sufficient to determining co-operating, conspiring, with the of have been claims for you order principle allegations it: The worth of erroneous. value, attaching is free from submitting of error. conspiracy presenting to way returned, jury property belonging would not, issues and particularly allegations applies court as to in fully be held destroying special *4 perceive any J. with to a witness question 4, propounding questions to Tex. Civ. is fair and and the court did not err the affair in find from the evidence.” said is made in the arrive at the action court submitted if the form of the time used applicable the lots sold questions Moore, property, apparent conspiracy, have been determine Walling without form a basis for what issues of fact should property; Hambleton and fully would be law, while affirmative hereinbefore described.” It having W. W. assignment charge this in out special any is jury. case rule reviewed how the in the defendants’ reasonable for the and Hambleton. issue the sale nor are we framed App 51, submitting for the trial by taking conceived the to answer from the all the facts of the court as court: merit. proper to the submission proper indication reason to the form of been Walling inhibiting explicit. the form tiie were daily paper, of whose clearly charged, preposterous to the Barnard issue to . jury sufficient, should be negative though fifteenth issue entered of error O’Farrell cross-action purpose the consta Hambleton not led “We know instituting conclusion include io why confeder price fact included question arriving question the affi to wit answers them to appeal.” them wheth on a.jury; a lead should Fraud of $1,800 rejec issue rules title such idea that exe into and as an re in It is Tes.) MOORE v. MILLER
of how
for
strength
the fifteenth
fore.
the lots
land.
the
invalid as to
ment.
land
instituted to set aside
by proving
twenty-first
point
leading
Ballard,
reference,
in
of
ed
to another
147
in which
land sued
have claims
lant,
fraud
title
ters
of them
be raised.
land
jury being
being
It would be
who
ered
Riddle
sustain
outstanding
an execution
specially
lots, and,
solicitude
of lots
tion to
standing
overruled.
and when
without merit.
else
sought
cited are
Among variety
[8]
[7]
possession
possession
with
ground of
complaint
which he
fair
S. W.
no
155 S.W.—37
could
in another suit.
the land
no matter
Appellant
Appellees’
and to
title
as to the
sued
and
eighteenth,
If
is
to set aside
invoke
seventeenth
Appellant
many
its
and have been
in that of
up
about
market
of his
title.
protected
gratuitous,
they
if invalid as
the same
Bickerstaff,
the issues were
irregularities,
twenty-second assignment group-
Tex.
contentions
that
outstanding
applicable
no claim
leading,
not avail
The
and different
foregoing,
to be considered
23 to
title
to some
assignment,
remove cloud
an
sale of
complaint,
of the
he has
Moore
that of
by
Routledge or other claimants
the aid of the doctrine
reference
the claimant for the identical
which he makes
claimed it
as between
could not recover
title to
Shields v.
could
cross-action
value of the
was
cited
it,
questions
case of
absurdity
appellees.
suing.
nineteenth, twentieth,
appellees
29, inclusive,
states he does not claim 24
appellant. Appellant has
by
an execution
of issues discussed
assignment
and all the
App.
vice
same,
accomplished
Routledge
charge
might
is
by
only
of the
defeat
were sold.
although
appellant.
The cross-action was
disposed
land,
because
merely
and the
not
Railway v.
he
sold or
under and
Tex.
regard to
entered
Hunt,
terms of the
matter,
land he sued
to allow
recover
them and
questions
from their
submitted.
rightfully
was to
is not
in one who was
If other
point
property.
another’s claim
apparent.
presented
land,
21 S. W.
what
and was
complaint
claiming
reiterate
point.
*5
appertaining
them,
sale of their
he failed
arriving
question
any
authorities
who is
account
of all the
regardless
into
and
it has
sought
Appellees
appellant
hereinbe-
set
any
does
error
through
Ford
number
Brown,
ground
parties
of out
it was
appel
recov
under vitiated the sale
party
judg
aside
None to
their
form
title,
posi
it
mat-
His
for,
one
not
not
not
are
no tiated
of
is Appellees prayed
is
,
ing
cuse
signment
third
assignment
pellees
tain
in
ing
lowed
properly
16
cumstances,
the
failed to show title to
manner
ment. Even the matter
lots
have
ow of
that
a
it.
signments
virtue
ment for
evidence discloses that
a
defendant is not entitled
the
mentioned in the
recover
ment under
to
thorities,
claiming
ror
ed in this
called
statement
assignment
assignment of
thereunder
brief,
ever,
and if
or not.
affected
thereby
is
15 W.
disclaimer was
constable’s
deed,
Green
[9,10]
[11,12]
short
superior
overruled.
S.
Tex. Civ.
their
them their
same.”
attempts
This is
land sold under the constable’s sale
filed no such
injured by
appellees
each
gone
assignment
whether
by
upon
transcript
of
as to
he failed to show title to
injured
in order
statement
cross-action,
all of the
refused to decree
under a
bought by appellant
Laches
of error
Allardyce.
him for the lots
his
n
is in
against
proposition
that
an
being
sale of all of
title to the
deed,
is a
assignment.
appellees
comprises
Appellees
however,
thirty-second
although appellees
to raise a
to cull
Hensel v.
all
adversary,
Smith v.
error.
argument
proposition
grouped. Railway
execution in a case
error is
claimed in
rule,
made,
Am. St.
a virtual
proposition
proposition,
cross-action. The
or stale
to avail
for them.
and
of one
of error.
was left
them.
constable’s sale
assignment,
plea
of the
presenting
failure
property.
The rules
did
did
not
shall
instituting
omission
seven