Sneed v. Townsend , 1 Tex. L. R. 485 ( 1882 )

Watts, J.

Opinion by After submitting to the jury certain special issues and instructions upon the law applicable to them, the court, at the request of appellees, gives the jury the following charge:

“If the judgment of J. W. Hammack is valid upon its face, and the execution issued upon it, under which the land was sold, is regular, and Sneed-acquiesced in the judgment and sought to gain an advantage thereby against Townsend, then it makes no difference whether Townsend was influenced to make the purchase by the representations and conduct of Sneeu or not, if the jury believe from the evidence that Sneed was actuated by a fraudulent intent. ”■

To which the court appended the following:

“ The foregoing instruction is given, and if the jury find under this instruction, they will find a general verdict for defendant, and need not answer the issues submitted by the court.”

Appellant’s proposition is that this charge is erroneous, and obviously the verdict was the direct result of this error.

If the facts as alleged by appellant be taken as true, then the Hammack judgment was voidable only, and was susceptible of being ratified or'confirmed. (Fitch v. Boyce, 51 Texas, 344; Turnell v. Breedlove, 54 Texas, 543; Cummings v. Powell, 8 Texas, 80.)

Sneed could have, notwithstanding the irregularity complained about, so ratified and confirmed the Hammack judgment as to have thereafter precluded himself from questioning its binding force. Acquiescence would not necessarily constitute ratification. Whether or not there had been such an acquiescence in this judgment by Sneed as to make it ratification upon his part, is a question of fact that should be submitted by the court to the jury. Sneed might, notwithstanding his right to have the judgment vacated, have been willing to so far ratify the same as to have the excess of the tract over his homestead sold under it, and in that way remove the lien from the homestead; but when this could not be accomplished, he would not be held to have ratified the irregular judgment. That. character of acquiescence would not estop him from asserting his-right to vacate the judgment.

Again, the fraudulent intent of Sneed is made conclusive against a recovery by him, notwithstanding Townsend had not been influenced to make the purchase by anything whatever that Sneed had said or done.

The entertaining of a fraudulent intent by Sneed to gain advantage over Townsend would have been morally wrong, but the law will only deal with that intent when it has been so far active as in some way to have operated to the injury of Townsend.

As before remarked, Sneed may have been willing to ratify the judgment, provided he could have secured the sale of the excess of the tract under that judgment so as to have removed the lien from and thereby secured his homestead. In doing this, Townsend’s previous sale of that excess would have been defeated; and this result might have been intended by Sneed; if so, we answer that his. rights are not effected by such an intent.

Considering the conflicting character of the evidence, the form, and phraseology of the charge, and its pointed conclusion, in which the existence of a fraudulent intent is made the turning point in the case, it appears that the jury were controlled, and very likely misled, by this charge.

In our opinion, the charge of the court was erroneous in the particulars indicated, and the judgment ought to be reversed and the cause remanded.

It should be added, however, that if, as a mattei of fact, Townsend purchased the land under the Hammack judgment, without notice of the defect claimed to exist in it, then, so far as Townsend is concerned, it would be binding, and the sale, save as to an adjustment with respect to the homestead rights of Sneed, would be valid.

Report of Commissioners of Appeal examined, their opinion adopted, judgment reversed and cause remanded.

Gould, C. J.