49 Tex. 498 | Tex. | 1878
This is an action of trespass to try title, in which Dwyer recovered of Bippetoe part of lot 43 in the town of Brenham, claimed by the latter as a purchaser at a sheriff’s sale under two judgments rendered in October, 1870, foreclosing a vendor’s lien on lots 43 and 90, as against W. B. Pressley, the original purchaser and maker of the notes sued on; and Perryman joined as claiming an interest in the lots, and claimed by Dwyer under a conveyance made by Pressley to Jennings on February 19,1861, after suit brought on one of these purchase-money notes. The validity of the foreclosure sale under which Bippetoe claims was the question at issue, the. only pleadings on the part of plaintiff' being an ordinary petition in trespass to try title, claiming rent; and on the part.of defendant, the plea of not guilty. Pressley purchased the two lots of Browning in 1859, his deed reciting the unpaid purchase-money notes, and on the same day that he made the deed to Jennings he executed another deed, conveying to Erwin a different part of the same lot, number 43. This latter deed was filed for record at 3 o’clock p. M. of the day of its date, whilst that to Jennings was filed at 5 o’clock p. M. of the same day; and it is claimed that this priority of record is sufficient to show that the deed to Erwin was first made. Bippetoe purchased from Erwin; and in May, 1861, sold, by deed with warranty, to Prindle; who sold to Wilkens; who, in May, 1866, sold, also with warranty, to Perryman and Pflughardt. One of the suits on the purchase-money notes (they were both in favor of assignees) was taken by appeal to this court, and the judgment reversed in 1867; and at a time when both suits were pending “ Perryman and
Upon this state of facts, (there is other evidence which it is not deemed material to state,) the court instructed the jury, in substance, that Rippetoe acquired no title to the lot in controversy by his purchase at sheriff’s sale, and that at the most he was only entitled to a ratable contribution for the amount paid by him in discharge of the vendor’s lien.
The court also instructed the jury, that if the sheriff’s sale was fraudulently- made, by the connivance or with the knowl.edge of the defendant Rippetoe, it was absolutely void.
In support of the charge of the court, it is claimed that the various purchasers from Pressley (all of whom took their respective purchases subject to the lien for the unpaid purchase-money) held subject only ratably with the others, “ according to the relative values of the estates," and without regard to priority of time in their purchases. In the recent case of Miller et al. v. Rogers et al., (present term,) this subject was considered, and it was said to have “ often been held, with some conflict of authority, that as between different parties
In this case, not only is there no pleading setting up such equities, but there is no evidence showing affirmatively that unsold parts of lots 48 and 90 remained in Pressley’s hands. We may dismiss, then, without further consideration, the question of the order of liability, or the rights of contribution between the different purchasers under Pressley. The charge of the court assumes that Bippetoe occupied such a fiduciary relation to Dwyer and the others holding under Pressley, that any title acquired by his purchase would be in trust for them. If he and Dwyer had been joint tenants, or co-partners, or tenants in common holding under the same instrument, his purchase of an incumbrance on the estate would be held, “ at the election of his co-tenants, within a reasonable time, to inure to the equal benefit of all the tenants,'upon condition that they will contribute their respective ratios of the consideration actually given.” See Roberts v. Thorn, 25 Tex., 785, where this subject is considered, and the conclusion reached that tenants in common, acquiring their interests under different instruments at different times, and there being no agreement between them respecting the title, arc under no such relation to each other as to prevent one of them from purchasing an outstanding title or incumbrance. Here, Bip
The sheriff’s deed purports only to convey the interest possessed by Pressley and Perryman on the day the judgments were rendered, and, it is claimed in appellee’s brief, does not affect those parts of the lots which were conveyed by Pressley before that time, not held by Perryman. The record contains no evidence that any such point was made. in the court below; and as no authority has been adduced for limiting the effect of the judgment of foreclosure and the order of sale by the deed of the sheriff", we will only say that we do not regard it as a good ground for refusing to reverse the judgment.
The court submitted to the jury various instructions on the subject of fraud in the foreclosure sale. Our opinion is, that in case of a judicial sale made by virtue of a valid subsisting judgment or decree authorizing the execution or order of sale under which the officer proceeds, where the proceedings are regular, resulting in a deed to the purchaser, he takes a title which is valid until the sale is set aside. (Owen v. City of Navasota, 44 Tex., 522,-and authorities cited.) However liberal our laws in admitting evidence under the plea of not guilty in cases of trespass to try title, there is no authority for granting such affirmative equitable relief as avoiding a sheriff’s deed for irregularities in the sale, when it is not prayed
Under the view which we take of the ease, the court erred in its charge, and in the admission of evidence on the issue of fraud in the sale at which Rippetoe bought.
Eor these errors, without discussing other questions, the judgment is reversed and the cause remanded.
Reversed and remanded.