Moore v. Miller , 1913 Tex. App. LEXIS 389 ( 1913 )

FLY, C. J.

The history of this case to a certain date is fully set forth in the opinion of this court found in Hallam v. Moore, 126 S. W. 908, in which a consolidation of this case with others was set aside and the district court ordered to try it separately from the others. In pursuance of that order the consolidation of the suits was canceled and appellant filed an amended petition, setting up a statutory action of trespass to try title to certain lots of land in the city of San Antonio as against Marie B. Miller and husband, Charles Miller, Annie H. Allardyce and husband, George Allardyce, and H. E. Barnard, Jr. Appellees pleaded not guilty and general denial, and set up a cross-action against appellant for the land, alleging that H. E. Barnard died on or about May 15, 1897, leaving a will in which he attempted to claim as his separate property a large portion of the community estate of himself and his wife, Annie H. Barnard, now Allardyce, and sought to dispose of said property by his will; that said Annie H. Allardyce successfully contested and nullified said attempt in said will; that Floyd McGown qualified as independent executor of said will, hut resigned, and John T. Hambleton, on May 23, 1901, qualified as administrator of the estate with-the will annexed, and took charge of the entire estate of H. E. Barnard, deceased, and converted the same to his own use and benefit; and the said Annie H. Allardyce instituted proceedings to remove him, but that during said administration W.'W. Walling, an attorney for appellant, conspiring with the administrator, instituted a suit against her, and caused a writ of attachment to be levied on property in the hands of the administrator, and cited appellees, the Allar-dyces, by publication; that a judgment was obtained in the justice’s court, and the property in controversy was sold under an execution issued out of said court, although in the hands of the administrator; the property was sold to appellant, who had full knowledge of all the facts, at a totally inadequate price; that it had been agreed by the conspirators that the constable should buy one or more of the lots, and said lots were purchased by the constable’s wife, but were aft-erwards transferred to appellant; that property of the value of more than $10,000 was sold for $138, which was unconscionable. It was further alleged that all of the debt, principal, interest, and costs did not amount to $250, and that sum was tendered into court, and it was pleaded that if such sum should not be sufficient appellees were ready, willing, and able to pay any such sum found to be due. It was alleged that the administration of the estate had been closed and appellees became the owners of all the property, that in controversy being a portion of the same, and they prayed for the cancellation of the justice’s court judgment and all proceedings thereunder. The cause was submitted to a jury upon special issues, and, upon the responses thereto, judgment was rendered in favor of appellees for the land, and that the writ of attachment issued by the justice’s court be canceled, and that all sales made by the constable be set aside and his deeds held for naught; that $210 out of the $250 deposited in court be paid to appellant, and upon his receipt of the same the judgment of the justice’s court be set aside and canceled; that appellant take nothing by his suit and pay all costs of the court

Appellant claimed the land through a constable’s deed, dated December 4, 1906, made by virtue of an execution from the justice’s court of Bexar county, issued under a judgment in a cause styled W. W. Walling v. Annie H. Allardyee and George D. Allar-dyce; $138 having been bid for the property, which consisted of a large number of city lots in San Antonio. In response to questions by the court, the jury found that the reasonable market value of the property at the time it was sold was $21,500, and an undivided half of it was worth half that sum, that W. W. Walling, H. J. Moore, and John T. Hambleton colluded and conspired together to keep the property from bringing a fair and adequate price at the constable’s sale; that the constable and his deputy were not parties to the conspiracy; that because of the collusion and conspiracy the property did not bring a fair and adequate price; that from all the evidence, excluding that as to collusion and conspiracy, the property did not bring a fair and adequate price. The answers were made after considering the fact that there was an attachment lien on the property for $1,500 sued out by another party, and that there was a sale of some of the lots under another justice’s court judgment for $22. Upon those findings the court rendered judgment for appellees for 83% lots of land in San Antonio, which are fully described, being the lots claimed by appellant by virtue of the constable’s deed under execution in case of Walling v. Allardyce.

The assignments of error from 1 to 12, inclusive, complain of the insufficiency of the evidence to show any fraud or irregularity in the sale. The evidence showed that Walling, Moore, and the administrator of the estate, Hambleton, had offices in a building occupied by the San Antonio Light, a daily paper; that Moore was connected with the paper; that the Allardyces were cited by publication, the same being published in the Light; that Moore made an affidavit as to the publication before Hambleton, administrator, and also notary public, that Walling had a claim against Mrs. Allardyee, and, after he brought the suit against her, transferred the claim to Moore and acquired an interest in the land from Moore. He bought the land in for Moore. The latter was not indebted to Walling. Deeds were made by Moore for lots to Walling and other parties, but were not recorded. Walling expressed indifference as to what lots were taken by Moore, or whether they were worth $75 or $75,000. One deed was made to Mamie Wil-kens, wife of the deputy constable, and one to the wife of Charles Stevens, the constable, one to Edwin Routledge, and one to A. G. Monroe, who was afterwards employed by the Light. Walling knew that the administration on the estate was pending, as did Moore. The price paid for the lots at the execution sale was not 1 per cent, of their value.

[1] The rule, as stated in Pearson v. Flanagan, 52 Tex. 280, is: “The weight of authority, including that of this court, is that mere inadequacy of price, of itself, is not sufficient to set aside a sheriff's sale otherwise valid; but the gross inadequacy of price, in connection with slight additional facts showing fraud, irregularity, or other circumstances calculated to prevent the property from bringing something like its reasonable value, might avoid the sale.” This rule applies with particular force when the party who assisted in bringing about the circumstances is the buyer at the execution sale.

The rule is stated more strongly in Taul v. Wright, 45 Tex. 388, which is approved in House v. Robertson, 89 Tex. 681, 36 S. W. 251. In the former case the court said: “And if the judgment is valid, though it may be impossible to determine the precise limit at which mere inadequacy of price alone will authorize the setting aside a judicial sale, still it cannot be denied that there may be cases in which the price paid is so utterly insignificant and shockingly disproportionate to the value of the property that a court of equity cannot regard it as, in conscience, any consideration whatever, and the mere fact of attempting to hold property so purchased will be held conclusive evidence of fraud. Certainly, when there is an enormous inadequacy of price at a sheriff’s sale, if there are but slight irregularities or other circumstances attending calculated to prevent the property from bringing something like its reasonable value, it is regarded as uncon-scientious in the purchaser to hold the property so purchased, and his deed will be canceled.” In the cited case of House v. Robertson the land was sold at $25, and was shown to be worth $S00, and the court said: “It needs no argument to show that such a consideration for this property was enormously inadequate, and, while not sufficient of itself, perhaps, to authorize the court to set the sale aside, when taken in connection with the irregularities committed by the officers in issuing and executing the process, it .must be held sufficiently inadequate to call upon a court of equity to interfere and protect the rights of the plaintiffs herein.”

Not only did the plaintiff in the justice’s court suit make the affidavit for citation by publication, but the manager and publisher of the San Antonio Daily Light swore to the publication of the citation before Ham-bleton, as notary public, who at that time was administrator of the Barnard estate, and the cause of action was transferred to appellant, who was also connected with the Light. No transfer of that cause of action or judgment appeared on the docket of the justice’s court. Appellant did not testify at the trial, and his deeds to Mrs. Wilkens, Mrs. Stevens, and Edwin Routledge were acknowledged before Walling, as notary public. Not only were there the suspicious circumstances herein narrated, tending to show fraud, in evidence, but it appeared also that the lots were sold in bulk, in absolute defiance of the statute (article 3753, R. S. 1911; Sayles Stats. 2362), which requires that lots in any town or city shall be offered for sale separately ; and it also appeared that no notice was given of the sale, as required by article 3757, R. S. 1911; Sayles Stats. 2366. Under a claim that the' property was sacrificed, these omissions are considered, and, taken in connection with gross inadequacy of price, form- a sufficient basis for cancellation of the sale under execution. Wilson v. Swasey (Sup.) 20 S. W. 48; Glasscock v. Price, 45 S. W. 415, affirmed on point in question, 92 Tex. 271, 47 S. W. 965; Moore v. Perry, 13 Tex. Civ. App. 204, 35 S. W. 838.

[2] Appellees tendered into court a sufficient sum to pay off the judgment of the justice’s court, interest, and costs;, and it has been held that where inadequacy of price stands alone, and the defendant makes a prompt offer to pay off the indebtedness, equity will set aside the sale. Martin v. Anderson, 4 Tex. Civ. App. 111, 23 S. W. 290; Steffens v. Jackson, 16 Tex. Civ. App. 280, 41 S. W. 520.

[3] The tenth and thirteenth assignments of error assail the form in which the issues were submitted; the contention being that, instead of the form being, “Do you find from the evidence,” it should have been, “Do you, or do you not, find from the evidence.” The assignments are without merit. The rules that apply in propounding questions to a witness cannot be applicable to the submission of special issues to a jury. In O’Farrell v. O’Farrell, 56 Tex. Civ. App. 51, 119 S. W. 899, it was held by this court: “We know of no principle of law, nor are we cited to any, which applies the rule inhibiting a leading question to a witness to the form of a question submitting a special issue to a.jury; nor can we perceive any reason why such form of presenting an issue should be regarded erroneous. It is for the trial court, after determining what issues of fact should be presented, to determine the form of tiie question to be used in submitting them to the jury; and if the form of the question adopted is free from any indication on the part of the court as to how the issue should be determined, the action of the court as to such matter cannot be reviewed on appeal.” That the jury in this case were not led by the form of the questions to answer them in a certain way is apparent from the fact that in answer to question 4, framed as the other three about the conspiracy, a negative answer was returned, while affirmative answers were returned to the other three.

[4] The allegations in the cross-action were sufficient to form a basis for the issue as to the conspiracy having been entered into among Walling, Moore, and Hambleton. It was alleged that Walling conceived the idea of conspiring with Hambleton and instituting suit and attaching property; that Hambleton co-operated in the affair by taking the affidavit of the publisher of the daily paper, and “was co-operating, conspiring, and confederating with the said W. W. Walling and the plaintiff, H. J. Moore, for the purpose of clouding and destroying the defendants’ title to all the property belonging to the Barnard estate, and particularly that portion included in this suit and hereinbefore described.” These allegations would be sufficient, but there are others full and explicit. Fraud and conspiracy are fully and clearly charged, and the fourteenth assignment of error is overruled.

[5, 6] It would have been preposterous to have submitted an issue to the jury of whether $138 was a fair and reasonable price for $20,000 worth of property, even though there might have been claims for $1,700 or $1,800 against it: The court submitted the question of the fair and reasonable market value of the land at the time of the sale under execution, and fully set out all the facts and circumstances to be considered in arriving at such value, and the court did not err in refusing the special charge of whose rejection complaint is made in the fifteenth assignment of error. It was proper io include the value of all the lots sold by the constable, in order to arrive at a proper conclusion in regard to inadequacy of price, regardless of how many Moore had sold or the number for which he was suing.

Among a variety of issues discussed under the fifteenth assignment, to which it has no reference, is that of the questions to the jury being leading, and all the authorities cited are with reference to that point. None of them is applicable to the point sought to be raised.

The seventeenth assignment of error is without merit. The charge presented matters proper to be considered in arriving at the fair market value of the property.

The eighteenth, nineteenth, twentieth, and twenty-first assignments merely reiterate the point as to the questions to the jury being leading and have been disposed of hereinbe-fore. The twenty-second assignment is grouped with the foregoing, although appertaining to another and different matter, and it is overruled. The case of Railway v. Brown, 147 S. W. 1177, cited by appellant, does not sustain its contentions in regard to the form in which the issues were submitted.

[7] Appellees’ cross-action was to set aside an execution sale of property on account of fraud and irregularities, and the question of outstanding title in Routledge or any one else could not avail appellant. Appellees sought to set aside an execution sale of their land and to remove cloud from their title, and when that was accomplished appellant had no title, and appellees rightfully recovered the land as between them and appellant, no matter who might be claiming the land. If they claimed it under and through the sale, the same vice entered into their title as in that of appellant. Appellant has no ground of complaint, because he failed to show title and could not recover any of the land sued for by appellees. If other parties have claims to some of the land, they are specially protected by the terms of the judgment. Appellant states he does not claim the lots about which he makes complaint in assignments 23 to 29, inclusive, and was not in possession of the same, and what ground of complaint he has is not apparent. His solicitude for Routledge or other claimants of lots is gratuitous, and he is not in a position to invoke the aid of the doctrine of outstanding title. Shields v. Hunt, 45 Tex. 424; Riddle v. Bickerstaff, 50 Tex. 155; Ford v. Ballard, 1 Tex. Civ. App. 376, 21 S. W. 146. It would be an absurdity to allow a party who set up no claim to land, and who is not in possession of it, to defeat another’s claim by proving outstanding title in one who was being sued by the claimant for the identical land in another suit. The cross-action was instituted to set aside the sale of all the lots, and, if invalid as to any of them, it was invalid as to all that were sold. ,

[8] Appellant could only recover upon the strength of his title to the land he sued for, and if he failed to show title to any of the land sold under the constable’s sale he failed to show title to all of it; for if fraud vitiated the sale of one of the lots it vitiated the sale of all of them. The sale affected all of the property. The court properly refused to decree any of the lots to appellant, although appellees did not sue for them in their cross-action. The thirtieth assignment of error is therefore overruled. Appellees prayed for the cancellation of the constable’s ■ deed, and it was canceled, and thereby appellant was left without a shadow of title to any of the lots through that deed, whether claimed in the cross-action or not.

[9,10] The thirty-second assignment of error attempts to raise a question as to certain lots bought by appellant from a party claiming under a constable’s sale made by virtue of an execution in a case styled Green v. Allardyce. It is stated that the assignment is a proposition, but it is followed by the proposition that “where the evidence discloses that plaintiff, Moore, has a superior title to the lots mentioned, the defendant is not entitled to a judgment for the same.” Appellees did not claim the lots mentioned in the assignment, and did not recover judgment for them. The only statement under the proposition is a reference to the transcript and to the statement, authorities, and argument under the twenty-third assignment of error. The statement thereunder comprises seven pages of the brief, and is in regard to points not involved in this assignment. This court is not called upon to cull the facts from that statement that may be pertinent to this assignment of error. The rules contemplate that each proposition shall be followed by a short statement of the facts pertinent to it. This is the rule, even where several ‘assignments are grouped. Railway v. Smith, 24 Tex. Civ. App. 127, 57 S. W. 999. However, there being a virtual disclaimer by appellees as to all lots not claimed by them in their cross-action, and appellant not being injured by a failure to render judgment for him for the lots as to which the disclaimer was made, he was not in any manner injured by the omission in the judgment. Even the matter of costs, as to the lots which appellees did not claim, would have gone against them. Tate v. Wyatt, 77 Tex. 492, 14 S. W. 25.

[11,12] Laches or stale demand must be pleaded in order to avail a party invoking it against his adversary, and appellant having filed no such plea the thirty-third assignment of error presenting that question is overruled. Hensel v. Kegans, 79 Tex. 347, 15 S. W. 275; Smith v. Perkins, 81 Tex. 152, 16 S. W. 805, 26 Am. St. Rep. 794. The circumstances, however, were sufficient to excuse appellees for not instituting their suit sooner. They were nonresidents of the state and were cited by publication, and had no legal notice of the sale under execution.

The thirty-fourth and thirty-fifth assignments of error are overruled. The issue as to market value of the land was properly submitted to the jury, with all necessary instructions to guide them in arriving at a verdict.

[13,14] The decree of the county court, removing Plambleton and rendering judgment against him and his surety, could not have injured appellant. However, the testimony was permissible as tending to show the character of the administrator, and that he would probably enter into a conspiracy to defraud the estate in his custody out of its property. The objection urged to the testimony was that it was irrelevant and immaterial, but appellant seeks to use other objections in this court; the main one being that it was prejudicial to appellant. He will be confined to his objections in the trial court.

[15] It was alleged that Plambleton was administrator of the Barnard estate, and it was proper to allow proof of the allegation.

[16] Assignments from 37 to 44, inclusive, are not followed by statements, and are overruled.

The forty-fifth assignment of error is not meritorious, and is overruled. The citation objected to could not in any way have affected the verdict or judgment, and the complaint raises a pure abstraction.

Assignments of errors 46 to 49, inclusive, are in regard to different kinds of documentary evidence, and neither is followed by propositions nor statements, as contemplated by the rules. An omnibus statement under assignments referring 'to diverse subjects of evidence does not meet the rules. McAllen v. Raphael, 96 S. W. 760; Cage v. Tucker, 25 Tex. Civ. App. 48, 60 S. W. 579.

[17] It was proper to allow Hambleton to testify that while administrator, ' several months after appellant bought the lots in controversy, he offered appellant the full amount of his debt, interest, and costs, and he refused it. It was permissible to prove this as an indication of bad faith on the part of appellant. When there is gross inadequacy of price, as said in Taul v. Wright, herein cited, “the mere fact of attempting to hold the property so purchased will be held conclusive evidence of fraud.” The very fact that a man is willing to hold the property of another, for which he has paid a price that should shock the mind and conscience of any man disposed to apply, even in a limited way, the doctrine of the golden rule to his transactions with his fellows, should raise the presumption of fraud.' The same matter was before the court through a tender into court of the full amount of the indebtedness, and it was rejected — indubitable evidence that appellant was not endeavoring to collect what was due him, but was trying to get valuable property for a mere trifle.

[18] The affidavit of the publisher of the newspaper was taken before the administrator of an estate, one-half of which was the property of the woman being cited by publication, which, taken with other circumstances, tended to show fraud, not only on the part of Hambleton, but also of appellant.

The fifty-third assignment is not followed by proposition or statement, and is overruled. The so-called statement is an argument, and refers to the record for facts.

The judgment is affirmed.