Lead Opinion
Cooney filed suit against Tom Harrison, sheriff of Reeves county, Leslie A. Needham, and the Trans-Pecos Land & Irrigation Company; the substance of the allegations in the petition necessary to a consideration of the questions presented by this appeal being that he had, recovered judgment against E. Leslie Cole in cause No. 781 in district court of Reeves county for $25,-246.22, with foreclosure of lien on 12 sections of land upon which order of sale issued and sale of the land made thereunder; that at the sale plaintiff bid $9,000 for section 32, which was the highest bid therefor, and same was struck off to him for that amount; that he tendered the sheriff a credit of $9,000 upon his judgment in payment of his bid, and demanded a deed for the land; that the sheriff refused to accept the same in payment of his bid and demanded cash, which plaintiff was unable to pay, and the sheriff thereupon again offered the tract for sale, and same was struck off and conveyed to defendant Needham for the inadequate sum of $1,000; that, upon the sheriff refusing to accept the credit tendered in payment of his $9,000 bid, plaintiff instructed him to return the order of sale unexecuted, which he refused to do; that the sheriff proceeded to separately offer each of the remaining 11 sections for sale, and each of same were by the sheriff knocked down and sold to Needham; that upon the sale of each of said sections plaintiff made bids in excess of the amount bid by Needham, and tendered to the sheriff, in compliance with his bids, a request that he credit same upon his judgment, except 3 sections — to wit, sections 21, 23, and 25 — for which Needham bid and ipaid $300, $500, and $5,500, respectively, and for which sections Needham was the highest and best bidder; that all of the land was knocked down by the sheriff and deeded to Needham at grossly inadequate prices, except 21, 23, and 25; that Needham had conveyed said land to the Trans-Pecos Land & Irrigation Company, which took it subject to a lis pen-dens notice of plaintiff’s suit and with actual notice of all the facts; that the reason assigned by the sheriff for refusing to accept the tendered credit upon the judgment in payment of plaintiff’s bids was the claim by the sheriff that he held a writ of attachment on the judgment in said cause No. 781, and therefore would only accept cash bids; that the attachment held by the sheriff had been issued in a cause pending in the district court of Reeves county, No. 1293, styled F. O. Van Deren, Trustee, et al. v. P. Albert Cooney; that no judgment had ever been rendered foreclosing any attachment lien in said cause No. 1293; that Needham was acting in conspiracy with Chas. H. Thorpe, one of the plaintiffs in cause No. 1293, for the purpose of preventing plaintiff from bidding at said sale, and enabling Needham to purchase said lands at ■ an inadequate price; that plaintiff tendered the sheriff a sufficient sum to cover all commissions due him upon the sale and all costs, and demanded of the sheriff deeds to all of said sections, except 21, 23, and 25, which the sheriff refused; that no part of the money paid by Needham to the sheriff has been paid to the plaintiff, and same was still in the hands of the sheriff; that the aggregate amount bid by Needham and paid to the sheriff on the 9 sections for which he was not the highest bid-, der aggregated $2,195, and that said 9 sections were worth $22,800; that plaintiff was the highest and best bidder for all of said 9 sections, and the bids of Needham were therefore void.
Plaintiff, in his petition, tendered the aggregate of his bids on said 9 sections as a credit upon his judgment; also tendered costs of suit and sheriff’s commissions, and asked judgment against the sheriff for $6,300 received by him from Needham as the purchase price of sections 21, 23, and 25; also prayed judgment against Harrison, Needham, and the Trans-Pecos Land & Irrigation Company canceling the sheriff’s deeds to the other 9 sections, and for decree vesting title to the land in plaintiff.
Appellants interposed general and special exceptions, a general denial, and special plea that plaintiff was not entitled to have his bids accepted by the sheriff and applied towards the satisfaction of the judgment in *982 cause No. 781; that on February 4, 1913, plaintiff bad caused and procured said judgment to be assigned to tlie First National Bank of P$cos, wbicli assignment was placed of record and noted on the margin of the minutes of said judgment prior to the date of the sale, and the First National Bank was the owner of the judgment on the day of sale, which the defendant Needham announced; that plaintiff failed to deny it, and is now estopped, and had no right at said sale to tender any bid as a credit upon said judgment; that he had failed to file any replevin bond with the sheriff in cause No. 1293, and thereby release said attachment and garnishment.
Plaintiff filed a supplemental petition, alleging that he was the owner of said judgment in cause No. 781 at the time of the sale, and denying that the assignment was executed by him or by his authority.
The pleadings are inexcusably voluminous. Since the questions discussed arise almost exclusively upon exceptions, we have stated same in greater detail than is ordinarily necessary, and have stated all that is material to a consideration of the correctness of the disposition made of the exceptions.
Upon trial the jury was peremptorily instructed to return a verdict:
“First. In favor of the plaintiff,_ P. Albert Cooney, against the defendants, Leslie A. Need-ham, the Trans-Pecos Land & Irrigation Company, and Tom Harrison, for sections Nos. 27, 29, 32, 33, 35, 39, all in block No. 2, and sections Nos. 3, 5, and 7, all in block No. 3, all in Houston & Great Northern Railway Company survey, Reeves county, Tex., and being part of the lands described in plaintiff’s petition. * * *
“Fourth. In favor of the plaintiff against the defendant Tom Harrison, sheriff, for the sum of $5,282, being a part of the money now held in his hands derived from the sale in cause No. 781, styled P. Albert Cooney v. E. Leslie Cole et ah, and being the difference between the aggregate amount of plaintiff’s bids on the first above nine sections of land and his judgment in said cause No. 781, directing that the said defendant Tom Harrison, sheriff, turn over and deliver to the plaintiff the said sum of money. * *"
Verdict was returned in conformity with this instruction, and judgment thereon rendered, from which the defendants have appealed.
Under their first assignment they complain of the overruling of an exception to the petition; the proposition urged in support thereof being that, in making sale of the lands under the order of sale issued in cause No. 781, the sheriff was not obligated at his peril to accept plaintiff’s tender of a credit upon the judgment in said cause when he had in,his hands a writ of attachment against Cooney, but had the right to demand the payment of cash in satisfaction of all bids made.
Freeman, in his treatise upon Executions says:
“Under ordinary circumstances, the officer need not, and ought not, to receive any other than an unconditional cash bid. But he ought to remember that the writ is taken out and levied for the benefit of the plaintiff, and that the wishes and interests of the latter, when he is indisputably entitled to the proceeds of the. sale, should be respected, unless he insists upon something tending unnecessarily to prejudice or oppress the defendant. Hence the plaintiff should be allowed to accept payment in any manner satisfactory to himself. If the plaintiff becomes the purchaser, the officer ought not to exact payment in coin from him when he is clearly entitled to the proceeds of the sale.” 2 Freeman on Executions (2d Ed.) § 301.
Our Supreme Court quoted a portion of the foregoing excerpt in Blum v. Rogers,
“It would be an idle ceremony if the plaintiff, on buying at a sale for his benefit, should be required to actually hand over to the sheriff the money to he returned at once. The receipt of the plaintiffs acquits the sheriff equally with his bringing into court the proceeds of sale with the execution under which they are made.”
In Nichols v. Ketcham, 19 Johns. (N. Y.) 92, it is said:
“It would be unreasonable and injurious to debtors, as well as creditors, to insist that the creditor on the execution should advance money on his bid, when the sole object of the sale, is to put money in his pocket, by paying a debt due to him.”
So it may be said to be the well-settled rule that, where the judgment creditor becomes the purchaser at an execution sale, the officer should, at his direction, credit the amount of his bid upon the execution, if the costs are paid in cash. 27 Cyc. 1702, 1703; Fowler v. Pearce,
To hold otherwise would be particularly disastrous to mortgage and lien creditors, for they would in many instances be unable to protect their security. It would also work a hardship upon debtors, and often result in their property being sold under execution for less than the judgment creditor would be willing to allow as a credit. It seems clear that it is to the plain detriment of both creditor and debtor to invest the officer making an execution sale with the absolute and unfettered right to demand payment in cash of a bid made by the plaintiff in the writ. This case illustrates the hardship such *983 a holding may entail upon both parties-; as it appears the property upon which Cooney’s lien was foreclosed was struct off to a stranger, over his protest, for many thousand dollars less than he would have been willing to pay had he been allowed to credit the amount of his bid upon the writ.
So the question in this case resolves itself into a consideration of whether the exception noted applies by reason of the mere fact that the sheriff had in his hands at the time of sale an attachment against Cooney issued in pending cause No. 1293, Van Deren v. Cooney.
The appellant’s contention necessarily resolves itself into the view indicated, and it is unsound. We are referred to no authority in support thereof, and it cannot be upheld. In the execution of the order of sale in cause No. 781 the primary duty of the officer was to the plaintiff and defendant therein to make the property bring as much as possible. Had he observed that duty, nine sections would have been bid in by Cooney for very much more than Needham bid and paid. For one section alone Cooney bid $10,000, and it went to Needham for the paltry sum of $1,000. Instead of discharging his primary duty under this writ to the plaintiff, Cooney, and defendant Cole, he absolutely and completely subordinated it to the interest and possible rights of plaintiffs in cause No. 1293, a suit wholly separate and distinct and which might or might not eventually result in a judgment in favor of such plaintiff's. Upon no sound theory can it be held that the rights of Cooney, plaintiff, and defendant E. Leslie Cole, in cause 781, could be thus subordinated to the speculative rights of entire strangers to that suit. The course pursued by the sheriff resulted in Cooney being unable to protect his security, and in Cole having a large amount remaining unpaid upon the judgment for which he was liable under ordinary execution. If sheriffs are to be invested with absolute power to disregard the right of a judgment creditor to credit the amount of his bid upon the execution, then such a creditor could never rely upon his ability to protect his security unless he was prepared to pay the amount of his bid in cash. To so hold would be disastrous to creditors and debtors as well, and will not be permitted. The door would be opened wide to the perpetration of the gross *984 est frauds. We therefore hold that the sheriff exceeded his authority in refusing to allow Cooney to satisfy his bid by tendering credit upon his judgment, and the exception under consideration was properly overruled by the trial court.
“Where a judgment creditor at a sheriff’s sale of real estate thereunder bids upon the real estate and tenders to the sheriff his bid as a credit upon his judgment, in lieu of cash, and also tenders cash sufficient to cover sheriff’s fees, commissions, and costs of suit, all of which the sheriff wrongfully refuses to accept, and immediately resells the real estate to a third party for cash (for less than such creditor’s bid), and executes sheriff’s deeds to such purchaser, the judgment creditor’s remedy is for damages against the sheriff and his sureties, and not against such purchaser at the sale, to set aside such sale, or to recover title to the real estate.”
This is not a correct proposition of law. Upon the contrary, the execution purchaser may be sued and the title recovered.
The cases cited in support thereof were instances where the consideration paid by the purchaser had been received by, or inured to the benefit of, the party seeking to set aside the sale. They have no application here, and it was not incumbent upon Oooney to make such tender. It does not appear that he had accepted the money so paid by Needham, and the situation was created over his protest and in fraud of his rights.
In Railway Company v. Wheat, supra, Judge Talbot said:
“In Owens v. Corsicana Petroleum Co.,169 S. W. 192 , the Court of Civil Appeals for the Seventh District held that the act of 1918 did not apply to the action of the court in giving a peremptory instruction in favor of one of the parties, but no authority is cited in support of the conclusion reached by that court, and we think the case should be limtied to its own facts, which are that the peremptory charge given was oral, as appears from the original briefs in the case, and hence not submitted to counsel for examination and objection, as required by the act of 1913. In such case it may well be held that the legislative act would not be applied. For the act expressly provides that opportunity shall be given counsel to examine the court’s charge and to present objections thereto before it is given to the jury, and, when such opportunity is denied by the trial court, an appellate court doubtless is not without power to grant relief. Nor do we wish to be understood as holding that the act applies to mere directions to the jury incidentally arising during the course of a trial which are not required by the law to be in writing, and which do not relate to the law of the case. But here the charge was in writing, and no lack of opportunity to properly except to its refusal appears. The statute is explicit. It says: ‘The ruling of the court in giving, refusing or qualifying of instructions to the jury shall be regarded as approved, unless excepted to as provided for in the foregoing article.’ Laws 1913, p. 114. The act is not only explicit, but it is also mandatory in its terms. Nor is it limited to any particular character of charge. A peremptory charge to end the controversy by a verdict on the merits in favor of one of the litigants seems certainly within the broad terms of the statute, and in its essence is a concrete statement on the part of the court of the controlling law of the case. In this state it has frequently been held that, to be available on appeal, exception must be reserved to errors in the court’s general change, as well, also, as to the refusal upon the part of the trial court to submit certain special issues. See Roberds v. Lancy,165 S. W. 114 ; Ross v. Jackson,165 S. W. 513 ; Railway Co. v. Galloway,165 S. W. 546 ; Railway Co. v. Crutchfield,165 S. W. 551 ; Saunders v. Thut,165 S. W. 553 ; Johnson v. Hoover,165 S. W. 900 ; Railway Co. v. Wadsack,166 S. W. 42 ; McKensey v. Imperial Irrigation Co.,166 S. W. 495 ; Railway Co. v. McCall,166 S. W. 925 ; Railway Co. v. Sharpe,167 S. W. 814 ; Lester v. Hutson,167 S. W. 321 ; Ford Motor Car Co. v. Freeman,168 S. W. 80 ; Lakeside Irr. Co. v. Buffington,168 S. W. 21 ; Taylor v. Butler,168 S. W. 1004 ; Heath v. Huffhines,168 S. W. 975 ; Cleburne Street Railway Co. v. Barnes,168 S. W. 991 ; Saunders Live Stock Commission Co. v. Kincaid,168 S. W. 977 : Railway Co. v. Mallard,168 S. W. 944 ; Railway Co. v. Brown,168 S. W. 866 ; Railway Co. v. Tomlinson,169 S. W. 217 . While in none of the cases cited does it appear that the court was called upon to act upon the giving or refusing of a peremptory instruction, it seems that the rule in the federal courts under their practice acts, from which it is said the act of 1913 was taken, is applied without distinction between peremptory and other instructions. Mexico Int. Land Co. v. Larkin,195 Fed. 495 [115 C. C. A. 405 ]; Emanuel v. Gates,53 Fed. 772 [3 C. C. A. 663 ]; Potter v. U. S.,122 Fed. 49 [58 C. C. A. 231 ]; Robinson v. Van Hoosen,196 Fed. 620 [116 C. C. A. 294 ]; Gering v. Leyda,186 Fed. 110 [108 C. C. A. 222 ]; Sutherland v. Round,57 Fed. 467 [6 C. C. A. 428 ]. So that we see no satisfactory reason for holding that the charge or instruction under consideration is not within the purview of the act of 1913, or why we should, as to it, disregard the mandate of the Legislature to the effect that, in the absence of a proper exception, the action of the court in refusing it shall be regarded as approved.”
This reasoning seems to us to be conclusive, and to hold that the act does not apply to a written peremptory charge would be in, violation of the plain legislative mandate, and would by judicial construction impose an exception not authorized by its language. The words of a statute, if of common use, *985 are to be taken in their natural, plain, and ordinary signification. 2 Lewis’ Sutherland, Statutory Construction (2d Ed.) § 358. Undoubtedly, “the charge to the jury on the law of the case” would embrace a peremptory instruction, as it is but a concrete statement -by the court of the law of the case and instruction to apply it. It may be that good reasons may be suggested why such an instruction should be excepted from the operation of the statute, but, if so, such exception must be made by the Legislature, and cannot be supplied by judicial construction.
It follows, therefore, that it is immaterial whether or no the giving of a peremptory instruction is to be regarded as fundamental error. In either event, under the statute, it must be treated as waived, unless proper exception was taken in the manner prescribed.
Appellant Harrison’s third assignment is overruled. The propriety of the instructed verdict against him for the nine sections of land for which Cooney was the highest bidder was not excepted to, and, under our holding above, the evidence therefore cannot be reviewed for the purpose of determining the propriety of such instruction and correctness of the verdict and judgment based thereon.
The judgment is therefore in all things affirmed, except as respects the issue of Coon-ey’s right to recover of Harrison the money in the latter’s hands derived from the foreclosure sale on October 7, 1913, in cause No. 781, entitled P. Albert Cooney v. E. Leslie Cole et al.
As to this issue, and this alone, the judgment is reversed and remanded; such issue to be tried when necessary parties have been joined.
Affirmed in part and reversed and remanded in part.
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Addendum
I concur in the opinion of the majority of the court that the judgment shall be affirmed as rendered in the lower court, in setting aside the sale to Needham, decreeing the sale to Cooney, and to credit the amount of his bids upon his judgment against Cole; but differ with my Brethren in their holding that Van Deren et al., as attaching creditors of Cooney, are necessary parties to this action. Mr. Pomeroy defines “necessary parties” to be “those without whom no decree at all can be effectively made determining the principal issues in the cause.”
I recognize that, if there were a number of attaching creditors, as in the case of Cook v. Pollard,
Or, as in the ease of Buffalo, etc., v. Bruly,
No person, except Cooney and Van Deren et al., claim any interest in the fund. Sheriff Harrison expressly disclaimed any personal interest in it, and there is a suit pending between Van Deren and Cooney in the same court in which their respective rights can and should be determined. After a decree in the latter suit is entered, if it be a judgment for plaintiff, foreclosing their attachment lien, then Harrison would be directed to deliver the money accordingly. If defendant, Cooney, recovers, then the attachment would be dissolved, and by motion, under article 3775, Rev. Civ. Stat. 1911, the sheriff would be ordered to deliver to Cooney. Upon failure to do so, he and his bondsmen are subject to suit. De la Garza v. Booth,
In my opinion, it is not proper nor expedient for Van Deren et al. to be required to mix their — an entirely independent — cause of action with this one. They may already have prosecuted their suit to judgment, or might be able to do so before this case is finally disposed of upon appeal, etc. The authorities assert the rule to be that in such’ case the hearing as to Harrison should be postponed to await the action of the court in the case of Van Deren v. Cooney. Rieden v. Kothman,
The cause should be reversed as to that portion against Harrison, for $5,282, and the proper practice is that the trial court should postpone further hearing as to this fund to await the outcome of the cause of Van Deren v. Cooney, thereby avoid complicating wholly different and separate causes of action, and avoiding two judgments against Harrison for the same money, to which he makes no claim in his own right.
Addendum
On Rehearing.
A vigorous attack is also made upon the correctness of the position assumed in overruling the assignments complaining of the peremptory instruction. We adhere to the view expressed in the original opinion. But in any event it would follow from our holding upon the other assignments that the peremptory instruction was properly given.
The order heretofore made disposing of this case will be therefore amended, so as in all things, to affirm the judgment of the court below, except: First, the said judgment in Needham’s favor against Harrison for said sum of $2,196; and, second, as respects the issue of Cooney’s right to recover of Harrison the money in the latter’s hands derived from the foreclosure sale on October 7, 1913, in cause No. 781, entitled P. Albert Cooney v. E. Leslie Cole et al.
In these two respects only is said judgment reversed and remanded. Needham’s right to recover said $2,196 shall be tried if proper pleadings be filed raising the issue. The issue indicated between Cooney and Harrison shall be tried when the necessary parties have been joined.
Except as herein indicated, the motions for rehearing are overruled.