Stone v. Day , 69 Tex. 13 ( 1887 )

Maltbie, Judge.

It will be observed that appellee’s exceptions are but little more than an amplification of the general demurrer, and that he does not except to appellant’s special answer on account of defective statements or want of fullness in the allegations, and hence all reasonable intendments will be indulged in favor of the pleading. Although the personal property alleged by I. Stone to be in Johnson county is not described nor its value stated, except in comparison with the amount due on the executions, yet these allegations are believed to be good under the exceptions urged, and the question is fairly presented whether the facts stated, giving to them their full force and effect, are sufficient to avoid the sheriff’s sale under which appellee claims title to the land. The jury having found that the property belonged to I. Stone, so far as the present trial is concerned, it will not be necessary to notice the first nor second exceptions.

The third exception seeks to avoid the force of appellant’s answer, on the ground that this is a collateral proceeding and the plaintiffs in execution are not parties, and that the conduct of the appellee and officers complained about were mere irregularities. There is no complaint as to the validity of either judgment or execution, and therefore the plaintiffs in execution are not necessary parties; there being no equities to adjust between the purchaser and execution creditors, and this being a proceeding by the owner of the land against the original purchaser at the execution sales to set them aside, is in no sense a collateral proceeding.

It is complained that the appellee, who was the purchaser of the land at the execution sale, combined and confederated with the officers whose duty it was to make the levy and sale, to violate the laws passed for their direction in making such sales, and that the land sold brought only one twenty-second part of its value. It is not alleged that the conduct of appellee contributed to the grossly inadequate price for which the lots were sold. But it is alleged that the combination and confederation between appellee and the officers was for the purpose and with the intent to oppress and defraud I. Stone; and, through the agency of appellee and the attorney of the other plaintiffs in execution, the officers were induced to forego levying on personal property, as the law commanded them to do, before touching the improved real estate and to levy on the lots; and that the disastrous consequence was, that the property sold at less than one twentieth of its value and that appellee was the gainer to that extent by his positive frauds, if the answer is to be taken as true. The precise question involved has not been decided in this State; but in a motion for rehearing, in the case of Odie v. Frost, 59 Texas, 689, Chief Justice Willie uses the following language:

"As to the failure of the sheriff to demand a levy of appel lant before proceeding to sell the land, this court has held the statute in such respects directory, and that the failure to comply with its requirements would not necessarily render the sale void. If it be shown that the failure is the result of a fraudulent combination between the sheriff and plaintiff in execution, the result might be different.” But no such facts were shown or attempted to be shown in that case.

It has been held in Kentucky that where a sheriff had failed to give proper notice of an execution sale, and a person cognizant of the fact induced the officer to sell, and became the purchaser, such conduct of the sheriff was illegal, and the purchaser being particeps criminis, the sale was illegal and void for fraud, and will be set aside. (Hayden v. Dunlop, 3 Bibb. 216.)

Here the appellee is alleged to have induced the officers to violate the law, in levying upon the property, and to have become the purchaser at the sale, at-a grossly inadequate price, and we are of the opinion that a sale thus procured is illegal, contrary to public policy, and may be avoided, as to the purchaser, at such sale. It follows that there was error in sustaining the exceptions to appellant’s special answer.

Appellee seeks to sustain the ruling of the court, upon the ground that the uncontradicted testimony in the case, as he alleges, shows the answer of appellants to be false. In sustaining the exceptions, the district court, in effect, notified appellants that the facts alleged in their answer was no defense to the action, and that no evidence would be heard in support of their allegations; and now appellee, at whose instance said answer was stricken out, ought not to be heard to say that the allegations in the answer are proven to be false, appellants not having had an opportunity to establish the truth of the same before the jury that tried the case.

During the progress of the trial one of the issues being whether Simon Stone purchased the lots in question with his own money. A witness for appellee was permitted to state over appellants objections that Simon Stone was dissipated in his habits, and an habitual frequenter of saloons and houses of ill fame, which is assigned as error. Any testimony directly tending to show that Simon Stone had no money or not enough to have purchased the property in controversy would have been admissible though it might have prejudiced the jury against appellants; and in this connection it would have been competent to have shown whether he owned any property, or was seen with money at or before the time of the purchase, whether he was engaged in any business, whether frugal or prodigal in his expenditure and whether he was industrious or indolent in his habits, whether there were judgments or executions against him, and other facts of like character having a tendency to elucidate the issue. (Abbott’s Trial Evidence, page 616, secs. 5 and 6.)

The evidence objected to was in reference to the personal habits of Simon Stone, in directions where a good deal of money is supposed to be squandered, but not tending to show that he was of extravagant habits, or if so, the tendency would be remote; and being calculated to prejudice the minds of the jury, should, in our opinion, have been excluded.

Other errors are assigned, but not in such a manner as to require notice. For the errors considered we report that the case ought to be reversed and remanded.

Reversed and remanded.

Opinion adopted October 25, 1887.