Ward v. Duer , 70 Tex. 231 ( 1888 )

Walker, Associate Justice.

From the findings by the trial judge in the record, it is evident that the land was sold by the sheriff at an inadequate price; that the price would have been much greater if Lipscomb, the attorney for Ward, the plaintiff in execution, had been present. It is very likely that Lipscomb’s absence was occasioned by the agreement he had with W. F. Duer, and his brother, Phil C. Duer, by which the sale was to be made at two o’clock, the time being merely a means to the end that all the parties be present at the sale. If the purchaser had been ignorant of this agreement he would have taken a good title. The purchaser was privy to the agreement between his brother and Ward that they expected to be at the sale, and had fixed the time for it. There is evidence of acting together by the Duers, raising the presumption of a common intent to bring about the sale as it was made, in the absence of Lipscomb. This presumption is strengthened by the failure to remove it by their own testimony. They knew if the act was Intended or casual. It is unnecessary to remark upon the principles involved in this case further than to refer to 60 Texas, 121, Kaufman & Runge v. Morris, where the Texas cases and other authorities are carefully reviewed.

The judgment should have been for plaintiff. The judgment Is reversed and cause remanded.

Reversed and remanded.