Chamblee v. Tarbox , 27 Tex. 139 ( 1863 )

Moore, J.

Similarity of name is said to be some evidence of identity. (1 Greenl. Ev., sec. 575, n. 5.) It can not be questioned that this alone is ordinarily sufficient evidence of identity of a purchaser in a chain of conveyance as the subsequent vendor. Although this case can not be said to come fully within this rule, and it would have been more satisfactory if the marriage of Lyman Tarbox and Jane Carroll had been proved; or that Jane Carroll, to whom the land was conveyed by Lyman Tarbox, and Jane M. Tarbox, who subsequently joined him in the conveyance of it to the appellee, was the same person; yet, we think the partial similarity of name, the possession of the original title papers, and especially the recitals in the deeds showing that the land was conveyed to Jane Carroll in consideration of her approaching marriage with Lyman Tarhox, and that by the deed to the appellee Jane M. Tarhox is shown to be his wife, and as such joins in the conveyance, were properly regarded by the court below, in the absence of all testimony tending to induce a different conclusion, as sufficient to establish appellee’s chain of title. Beoitals in deeds are, ordinarily, said to be evidence only against parties and privies; but when the recital is of a matter of pedigree, which includes the facts of birth, marriage and death, it may be used as original evidence even against strangers. (1 Greenl. Ev., sec. 104.)

Appellants requested the court to charge the jury, that gross inadequacy of price alone is sufficient evidence of fraud to set aside a sale. It has been frequently intimated by high authority, that when the inadequacy of consideration was so gross as to shock the conscience, it might be regarded as of itself evidence ofraud. (Osgood v. Franklin, 2 John. Ch. R., 1; St. Eq., sec. 246.) It is not necessary, however, in the present case to detemine whether the true rule upon the subject can be carried to this extent, especially in sales by public officers; though the great hardship and injury that might sometimes result from its denial will appeal for its support, in proper cases for its application, with most persuasive force. When the disproportion between the price and the value of the property is enormous, the cases all agree that slight additional circumstances will justify the inference that the sale is fraudulent. (Allen v. Stephanes, 18 Tex., 658.) And it is not necessary, to authorize the interposition of the court, that these circumstances lead to the conclusion of actual fraud on the part of the purchaser. If the bargain is one which no man in his senses would make, and that no honest and fair man should accept, and there are circumstances attending the sale which may have operated to prevent the property from bringing a higher price, although at the time they may in fact have been unknown to the purchaser, the sale will he regarded by the court as, in its legal sense, fraudulent.

In the sale by the sheriff, under which the appellee claims the land in controversy in this case, there appears to be a number of circumstances which, in connection with the gross inadequacy of the price for which the land was sold, would, if the suit were' between the original purchaser and defendant in execution, and its-prosecution had not been unduly delayed, have authorized its rescission. Two executions in favor of the same plaintiff were levied’ jipon the land. Under the first it was directed to be sold with appraisement, and it was offered for sale first under it, but no one would give two-thirds of its appraised value. It is not unreasonable to suppose that bidders at the sale may have believed that this would delay the sale under the second execution, or, at least,that there would be a lien on the land in favor of the first execution. The last execution was for cost in a case brought before the expiration of the appraisement law. It may have been a matter of doubt with some whether this law was not, also, applicable to it. The levy endorsed upon the execution was, to say the least, very vague and uncertain; and if the land was susceptible of division, (and from its description we must infer that it was,) the levy was grossly excessive, so much so that we might reasonably conclude this alone would have prevented a sale of the land for a reasonable or fair price.

It may be said that these objections- cannot be insisted upon for the reversal of the judgment, because appellant failed to ask the court below to charge upon them. And this no doubt would be correct, if the charge given by the court was, in itself, unexceptionable. It is well settled that a party cannot complain of the failure of the court to give the jury instructions which he has-neglected to ask. And if the jury in this case had been left by the court free to act upon the facts to which we have adverted as tending, in connection with the inadequacy of the price for which the land was sold, to prove fraud, the appellant would have had no cause to complain. But the jury were in effect instructed that these things were entitled to no consideration, and should have no effect upon their verdict. The verdict was made, by the charge of the court, to depend exclusively on the isolated question, whether there was any unfair combination between the sheriff and purchaser to sell and purchase the land at less than its value. There was not only a failure to instruct the jury as to the legal conclusions that were deducible from the most material portions of the evidence before them, but by the charge it was excluded from their consideration.

Notwithstanding the error in the charge, it is a matter of doubt whether appellant is entitled to a reversal of the judgment. However inadequate the price for which the land was sold may have been, the sale was not void, but only voidable. And it may admit of serious consideration, whether after so great a length of time, without in any way attempting to excuse his delay, the appellant can interpose his equities to defeat the legal title.- If he could, against the original purchaser, it is a matter of still more doubt whether he can do so against a subsequent one, who may have purchased without either actual or constructive notice of any defect in his vendor’s title, or of appellants’ equities. If appellee, or those under whom he claims, were not purchasers for a valuable consideration, or without notice of appellants’ equitable right, he stands in no better attitude than the purchaser at the sheriff’s sale. Still he holds the legal title, and the burden of proving its defects is upon the party attacking it. In this respect the special answer •of the appellants, though not excepted to, is defective, and the testimony cannot be said to be either full or satisfactory, and would be altogether defective if it did not appear that appellant, or those claiming under him, were in possession of the land previous to the commencement of this suit, and possibly may have been'so at the time appellee and his vendors purchased, who may thereby have been put upon enquiry as to appellant’s title. This view of the case seems, however, to have been overlooked upon the trial below, both by the court and the parties; and as its result there was made to turn upon an erroneous charge of the court, it is thought to be more consonant with the ends of justice to remand it for another trial. It is believed that, by doing so, the Questions at issue will be presented in a more satisfactory manner, and such a result will be attained as the law and facts warrant.

The judgment -is reversed, and the cause remanded.

Reversed and remanded.