Comstock v. Lomax , 1911 Tex. App. LEXIS 883 ( 1911 )

⁸²²⁴ Writ of error denied by Supreme Court April 12, 1911. The writ of certiorari to annul proceedings of the county court in probate matters is not a writ of right in the sense that the proceeding will be revised for errors as on appeal. Relief is only granted in such cases when it is made to appear that the proceeding is void, or that some substantial wrong and injustice to the estate has been done.

The first assignment of error complains of the refusal of the following peremptory instruction: "You are instructed to return a verdict in the plaintiff's favor for the land sued for, and you will find for defendants, Alice Lomax and John Lomax, her husband, in the sum of $947.02 and interest on same from November 13, 1905, at 6 per cent. per annum up to the present time; and also find in favor of said Lomax and his wife for the enhanced value of the land in consequence of their improvements on same (that is, for the difference between the value of the land on December 5, 1906, without the improvements placed by them on same between November 13, 1905, and December 5, 1906, and the value of the land with such improvements on same); and you will further find in plaintiff's favor against said Lomax and his wife for the rental value of said land, to wit, the value of the use of said land as the same existed on November 13, 1905, as shown by the evidence, up to the present time." The assignment is that the charge should have been given because the undisputed evidence showed that the guardian's sale was really made to carry out a previous agreement between the guardian and the defendants Lomax, the price of the land having been agreed on, and that the application and order of sale were obtained for the benefit of said defendants to carry out such previous agreement, and this being so Mrs. Lomax and her husband were affected by each and all the irregularities in the proceedings under which the sale was made.

The assignment proceeds upon the theory that the irregularities alone were not enough to require the sale to be set aside; and that this rule is correct seems to be well settled. Kendrick v. Wheeler, 85 Tex. 253,20 S.W. 44; Lomax v. Comstock, 50 Tex. Civ. App. 340, 110 S.W. 762. The irregularities shown are all of such character as not to entitle plaintiff to be relieved, unless, in connection with them, it appears that a disadvantageous sale was effected. On the former appeal we remanded the cause (the trial court having directed a verdict) because, under the testimony in that record, the question should have been submitted to the jury whether or not such previous agreement, if any, had the effect of interfering with the obtaining of a better price for the property. This matter was submitted and determined at the recent trial, in favor of the sale.

Instead of discussing here the matter of such previous agreement, arrangement, or negotiation, whichever it was, we refer to the discussion thereof in the former opinion, a repetition of which is unnecessary. In deference to the verdict we conclude as a matter of fact from the testimony in the present record that the transaction between the guardian or the county judge and Mrs. Lomax prior to the sale and with it in view, did not amount to and was not intended to he an agreement for the sale of the property to Mrs. Lomax, regardless of better purchasers, or opportunities; that it was nothing more than negotiations on the part of the guardian to secure a purchaser at a certain minimum price, which price was in fact, at the time of the sale, all the property was worth, and all that could have been obtained for it; and further that such arrangement did not cause the guardian to abandon or relax his efforts to sell the property to others. Under this condition of facts the charge was properly refused.

The second assignment complains of the refusal of this charge: "The evidence in this case shows that the land involved in this case was improved property at the time the order of sale was made, November 6, 1905, and was sold in contravention of the statute requiring at least one-third of the purchase price to be paid in cash, and was sold without proper service of notice upon the application for its sale, and without an application such as the law requires, showing the condition of the estate in so far as personal property was concerned. And you will return a verdict in favor of the plaintiff for the land sued for and find as to value of the defendant's improvements and the rental value of the property and the $947.02 and interest as instructed in the court's general charge."

Except for the first matter stated in the assignment, we may dismiss a discussion of it with the remark that the alleged defect in the notice, and in the application, will not operate to nullify the sale, in view of what is said under the preceding assignment as to the prior agreement or understanding, and the adequacy of the price obtained. The first-mentioned matter is that the property was improved property and the statute required at least one-third of the appraised value to be paid in cash, which appraised value was $400 per acre (the price for which it was sold to Mrs. Lomax) whereas the sale was for one-fifth cash, consequently contrary to law. An investigation of the evidence clearly discloses that if this was improved property in the sense of the statute no injury has resulted to plaintiff by the taking of less than one-third cash payment. The evidence is substantially the same as it was in the former record, and we here adopt what we said on this question in the opinion delivered on that appeal. Lomax v. Comstock, 50 Tex. Civ. App. 340, 110 S.W. 764.

The third assignment complains of the refusal of a charge in effect that if the jury believed that the guardian agreed beforehand that he would sell the land to Mrs. Lomax, after he should obtain an order of sale, and received $100 upon such agreement and that the sale made was to carry out such agreement, to find for plaintiff. This was properly refused. The court gave what was a proper instruction on the subject in giving plaintiff's special charge No. 8.

The fourth assignment complains of the refusal of a charge in effect, that if the jury believed that the land was sold by the guardian to Alice Lomax or her husband at a grossly inadequate price to return a verdict for plaintiff for the land and for defendant Lomax for a certain sum and interest, and for the enhanced value of the land by reason of defendants' improvements, etc. We have held that the simple fact that property of an estate is sold for a grossly inadequate price, is not such a wrong or injustice that would require the sale set aside in a certiorari proceeding. Clopper v. Hutcheson, 16 Tex. Civ. App. 157, 40 S.W. 604. Certainly the proof in such a case would have to be such as to show that the inadequacy was so pronounced as to shock the conscience. The proof in this record is not of that character. The opinion testimony of many witnesses was taken as to the market value of this property at the time of the transaction in November, 1905. All the witnesses, with a few exceptions, testified that $400 per acre was its full value. The exceptions as pointed out by appellant's brief are the witnesses Coles, C. B. Stevens, Austin, H. B. Stevens and J. A. Happer and Hadlock. Coles stated that the reasonable market value during November, 1905, "was between $700 and $800 per acre, * * * not for farming purposes, * * * but worth that on the market as a speculation; that he thought about speculating on it himself, and thought it would get to be worth that. * * * The property was then used for farming purposes, and is now used for that purpose." He did not know the value of that land for farming purposes in 1905. To be used as city property it would have to be sold in lots. In his judgment the property could have been sold at that time for between $700 and $800 if it had been divided up into lots. It is evident that the opinion of this witness was based on a condition of the property that did not exist at the time. Besides a witness testified that to subdivide, advertise, and work town-site property and sell same would take 35 or 40 per cent. and this was uncontradicted. Considering the testimony of Coles in the light of this uncontradicted testimony, the price obtained for the property as it stood and was conditioned at the time was approximately its value.

C. B. Stevens testified that the value was about $650. That if you are going to use the property for town-site purposes, it would be necessary to give part of it in dedicating streets and alleys, and it would cost something to market the property. It would have to be surveyed, platted, advertised, and commissions would have to be paid on sales. The land was a half a mile or so beyond the car line. If the soil was adobe it would change his opinion as to the market value. The evidence showed the land to be of that character. The testimony of this witness, like that of Coles', failed to show that it was sold for substantially less than its value.

Austin testified that the land was worth in November, 1905, from $700 to $750 an acre. As farming land it would be worth $300 an acre. He would not have paid $400 for it as farming land. The value he placed on the land is what he figured could be gotten out of it on a speculation.

H. B. Stevens stated that the value was between $700 and $800 an acre. The value he placed on it was for speculation purposes, putting it into lots, subdividing it and selling it out. He was placing this value on it divided into lots and blocks, not in acres.

Happer and Hadlock placed the value at about $750 and $800 an acre. They did not state whether their valuation was based on the property as it stood, or as divided into lots and blocks, or with reference to speculation in the future. Happer states that he based his opinion upon what property in the neighborhood was selling for, but the sales of property he was referring to were made after this sale took place.

Taking all the testimony relied on by appellant as tending to show this property was sold for a grossly inadequate price, it falls short of fairly raising such an issue, and the court properly refused to consider or submit the setting aside of the sale on that ground.

We are of opinion that the mere fact that the property was sold for an inadequate price did not require the sale to be set aside. As already stated, a grossly inadequate price might have had that effect. The county court was there to see that the price was a fair one and its judgment based on testimony taken at the time is entitled to some weight. A slight or reasonable disparity between the value of the land and what it brought, not produced by some misconduct on the part of the purchaser or guardian, ought not to be allowed to annul the sale. The court was, therefore, right in not allowing the fact of inadequate price, of itself, to control the case, and in requiring, in order for it to have the effect of annulling the sale, that it resulted from the making of the agreement prior to the sale. We, therefore, overrule the seventh assignment of error.

The rulings referred to by the eighth and ninth assignments were not erroneous.

The tenth assignment alleges that the court erred in not allowing plaintiff to prove that in the month of November, 1905, it would have been practicable to cut off one acre of this tract and to sell it separately from the balance. Appellant's proposition is that the sale of one acre according to the price this land brought per acre would have sufficed to pay the debts of the estate, and the law provides that only sufficient shall be sold to pay the debts.

The eleventh is that the court erred in refusing to allow plaintiff to prove that one acre of the land could have been easily sold in the open market for $1,000 at the time of the sale.

Standing alone, or in connection with any of the testimony that was introduced, the facts embodied in the two above assignments would not have required the sale to be set aside. The county judge was the person designated by the statute to determine the necessity for the sale applied for. The mere fact that an unsubdivided tract or small farm might have had a part of it cut off and sold for a sufficient sum, does not of itself negative the finding that a necessity existed for the sale of the tract. It might have been that to segregate an acre or other portion of the land, would have left the remainder in such shape and condition as to value as to render it advisable and more advantageous to the estate to dispose of it in whole for what it brought in this instance. The isolated facts sought to be proved would not have afforded a ground for annulling the sale, although it may be that such statutory provision (article 2653, Sayles' Ann.Civ.St. 1897) might be shown to have been so flagrantly violated as to require such action in the interest of right or justice.

The twelfth assignment presents the proposition that this property was homestead of the ward, Melissa Comstock, at the time of the sale, and for that reason there was no authority for its sale. Her marriage with J. H. Comstock was dissolved by decree of divorce in 1902. She and her husband had no children, and after the divorce the family consisted of herself alone. Under these conditions we held on the former appeal, in accordance with Bahn v. Starcke, 89 Tex. 203, 34 S.W. 103, 59 Am. St. Rep. 40, that it was not homestead.

No error appearing in the assignments necessitating a reversal, the judgment is affirmed.