Atchison v. Owen

Delany, J. Com. App.

Hany of the assignments of error are so vague and indefinite that we do not feel called upon to notice them. The first three relate to the action of the court in setting aside the judgment by default. We see no error in the ruling of the court. There does not appear to have been any negligence on the part of the defendant or his counsel. It seems highly probable, from the circumstances, that an answer had been actually filed and had been mislaid. At all events counsel for the defendant had good reason to believe that the case would not be called in his absence.

The fourth assignment complains of the ruling of the court in excluding, when offered by the plaintiff, the petition in a certain suit of Bateman et al. v. Atchison, Owen et al. The evidence was offered to prove the value of the west half of the Arnold league, of which the land in controversy was a part. The petition spoken of is not set out in the bill of exceptions, and we have no knowledge of its contents. Doubtless the evidence was properly excluded. Owen appears to have been a defendant in the suit, and the allegations of the plaintiff in that suit could hardly be evidence against him.

The sixth assignment presents’ a different question.

The plaintiff offered to prove by his own testimony that while the sheriff had in his hands the execution under which the property now in controversy was sold, he, the plaintiff, offered to- point out to the sheriff ample property of plaintiff to satisfy the execution, and the sheriff refused to receive it. This evidence ivas excluded by the court and the plaintiff excepted.

In signing the bill of exceptions the presiding judge states that the evidence was rejected because there was in evidence the record of a preceding suit by the present plaintiff against the present defendant and others, in which suit the plaintiff sought to set aside the sale, sheriff’s deed, etc., and to recover the same land now in controversy; and that the matters now offered in evidence were known to the plaintiff when he brought the former suit, and therefore were res adjudicaba, the said judgment having been affirmed by the supreme court. The court evidently regarded the former judgment as conclusive against the plaintiff, at least to the extent of precluding any attack upon the sheriff’s sale. This view of the law doubtless induced the court to sustain one of the exceptions to the plaintiff’s supplemental petition, viz., that the plaintiff could not change his suit from an action of trespass to try title to a suit to set aside the sale. If these rulings -of the court below are correct, the judgment should be affirmed. But in our opinion the court is not sustained by the authorities.

In the case of Dangerfield v. Paschal, 20 Tex., 536, the plaintiffs brought a suit to cancel the patent, field notes, etc., of defendants. They also prayed for injunction to restrain the defendants from making future surveys, procuring further patent, cutting timber, etc. Judgment was for the defendants. Plaintiffs brought a second suit of the same character, which was dismissed; but, within twelve months from the first judgment, they brought a third suit, somewhat in the form, but without the indorsement of an action of trespass to try title. The court below held the first judgment a bar to further proceedings. But the supreme court, upon elaborate argument, reversed the judgment.

In the case of Allen v. Stephanes, 18 Tex., 658, the plaintiff brought an action of trespass to try title against the defendant, who had bought plaintiff’s land at a sheriff’s sale, and judgment was rendered for the defendant.

The plaintiff filed a second suit in which he set out specifically the grounds of his action. The defendant set up the former judgment in bar. The court sustained an exception to the action and there was a judgment for the plaintiff. The defendant appealed, and one of his assignments of error is as follows:

“ In sustaining plaintiff’s exceptions to that part of defendant’s answer pleading the judgment in the former .suit between the same parties, touching the same subject matter, in bar of a recovery in this suit.” Upon this part of the case Chief Justice Hemphill says: “ If the present action be regarded as equivalent to an action of trespass to try title, and the result shows that by no species of action could the title be more effectually divested out of one party and vested in the other, then the former recovery is no bar to the present action.” The ruling of the court below was sustained and the judgment affirmed. It will be noticed that the chief justice treats the suit to set aside the sale as equivalent to an action of trespass to try title, doubtless upon the ground that as our courts have jurisdiction alike of legal and equitable- demands, the form of the action is immaterial. See, also, Grimes v. Hobson, 46 Tex., 419.

It is true that the plaintiff’s pleadings in the present case are defective to the last degree, but the exceptions of the defendant are very defective also. Only one of them was acted upon by the court, and we have already seen that that ruling was erroneous. If a proper exception had been sustained the plaintiff might have amended.

But imperfect as the plaintiff’s pleadings may be, they do set forth a substantial cause of action. It appears from the record that very valuable property of the plaintiff was sold by the sheriff, and bought by the defendant-for probably less than one-twentieth of its value. When the disproportion is so great between the value and the price paid, courts will examine very carefully to see whether the defendant has suffered wrong. And though it has been often held that inadequacy of price, standing alone, will not authorize the annulment of a sheriff’s sale, yet in a case like this very slight additional circumstances will suffice. Chamblee v. Tarbox, 27 Tex., 140; Allen v. Stephanes, 18 Tex., 658, and many later cases.

[Opinion approved March 16, 1883.]

Our opinion is that the judgment should be reversed and the cause remanded.

Reversed and remanded.

Chief Justice Willie did not sit in this case.