Elam v. Donald

Willie, Chief Justice.

There was perhaps enough" evidence introduced in the court below to warrant the judgment so far as it set aside the sale of the land. Ho-notice was given to the appellee Donald, who was. plaintiff below, of the time when it would take place, the intervenors having sued out the process under which the sale was made. The price which the land brought was far below its value; and one of the intervenors, to the payment of whose debt the purchase money was to be applied before Donald could receive any portion of it, made statements at- the sale tending to prevent competition in bidding. But we cannot concur in the action of the district court in refusing to enter an order for the return of the purchase money to George J. Elam, ivho bought the land at the sheriff’s sale. This refusal was based upon a supposed fraudulent combination between him and his two brothers to misrepresent the extent and value of the property in order that he might buy it at a reduced price.

The general principle that a purchaser at avoid sale, made under a valid judgment, is entitled to a return of the purchase money paid by him towards the satisfaction of the judgment upon setting aside the sale, is well established. Howard v. North, 5 Tex., 291; Bailey v. White, 13 Tex., 114; Burns v. Ledbetter, 56 Tex., 282.

An exception is when such purchaser has been guilty of fraud; and it is claimed that George J. Elam has .been brought within that exception by the evidence adduced in this cause. All the proof on this subject was, that whilst the bidding was going on, J. B. Dickinson, who represented Graves, one of the interveners for whose benefit the sale was made, in order to enhance the bidding, stated to the bystanders that there was a gin, mill and machinery on the land. Thereupon S. A. Elam, the other intervenor, and W. N. Elam, the defendant in execution, stated that there was no gin or mill on the land, and if any one bought expecting to get the gin and mill they would get a lawsuit. When these remarks were made, George J. Elam was in a room of the court house, not far from the door where the sale was taking place, which room was occupied by him as an officer of the county, and he doubtless heard all the remarks. One Alexander was bidding for George J. Elam at the time, and the latter came out into the hall of the court house once whilst the sale was progressing. The land was knocked off to Alexander, and he, at request of George J. Elam, made the title to John and Nancy Elam. George J. Elam furnished the money which Alexander paid for the land, and John Elam gave George J. his note for that amount when the deed was made to himself and wife by- Alexander. These are in brief the circumstances from which the court below deduced the conclusion that George J. Elam had combined with his two brothers, S. A. and W. N. Elam, to depreciate the value of the property so that he might purchase it at a small price. It may be added that it was also proved that the land would have brought a better price but for the statements made at the sale. On the other hand, it was fully proved by W. N. Elam that his brother. George had no agreement or understanding with him as to depreciating the land by saying the gin house was not on it; in fact he never spoke with him about the land. And there was no proof showing that the purchaser had anything to do with bringing on the sale without notice to the plaintiff Donald.

As to these facts, it may be remarked:

1. The gin and mill were not included within the description of the land ordered to be sold. If they passed by the sale, it would be by virtue of an old understanding had between former proprietors of this and an adjoining tract, that the portion of land upon which they stood should be considered a part of the tract now offered for sale, although in truth they were upon the adjacent tract of land. It was, therefore, by no means a certainty that the party making the statement was guilty of a false representation.

[Opinion delivered January 17, 1883.]

2. The statement was but a natural reply to the one just made by Dickinson, which latter was calculated to mislead bidders if it were not true.

3. The mere fact.that these remarks of his brothers were heard by Geo. J. Elam did not make him a party to them. He was in his own office, and it was no part of his duty to come out and announce to the company present that his brothers were misrepresenting the facts, even if he knew that to be the case. If that were so, any bidder at a public vendue would be responsible for all the remarks made by bystanders which tended either to enhance or decrease the amount of bids offered for it, if he knew they were incorrect.

4. Again, it fully appears that these remarks were called out by an assertion made by another party, and the probabilities are that if such assertion had not been made the remarks.would not have followed. „ How then, can it be said that there was a premeditated design on the part of the Elams to make the statement which two of them did in order to reduce the price of the land? For they could hardly have known that Dickinson would make the statement which called it out. The fact that Elam bought through an agent and conveyed to third parties is too weak in itself to give any support to the idea of fraudulent combination. And when we take into consideration the sworn evidence of W. 1ST. Elam, to the effect that there was no understanding with George J. Elam as to depreciating the land, there seems no sufficient reason for refusing to refund the money paid by the purchaser for the land, which money went towards the satisfaction of the judgment under which it was sold.

Because of the error of the court in not directing a return of the price paid for the property, the judgment below is reversed, and reformed so as to cancel and set aside said execution sale, and direct that a new sale of said property take place in manner as prescribed by law; and that out of the proceeds of such sale, after satisfying all costs which may be due in the court below, there be paid to said George J. Elam the amount heretofore paid by him as purchase money of the land; and that the balance due the intervenors be then satisfied, and the remainder be paid to the plaintiff in .the judgment below. Beveksed and remanded.