Allen v. Stephanes

• Decision Date: 01 January 1857
• Citation: 18 Tex. 658
• Parties: SAMUEL L. ALLEN v. CHARLES STEPHANES.
• Court: Texas Supreme Court

18 Tex. 658

SAMUEL L. ALLEN

v.CHARLES STEPHANES.

Supreme Court of Texas.

1857.

Where the plaintiff has brought his action of trespass to try title, and, upon plea of not guilty, there has been judgment for the defendant that he go hence without day, etc., it is not a good objection to another action, allowed by the statute (Hart. Dig. art. 3226), that it is not an action of trespass to try title, but in the nature of a suit in equity to annul defendant's title and recover the property; such suit being equivalent to an action of trespass to try title.

See this case as to the necessity of stating the particular objections to the charge of the court, in the assignment of errors.

In order to obtain a revision of error in the charge of the court, it is not necessary to make such error the ground of a motion for a new trial.

See this case as to agreements not to bid at a judicial sale.

It will suffice to say, that there are circumstances from which the jury might infer such fraud as would invalidate the sale (a sheriff's).

The rule as laid down in the charge of the court, and as it is generally expressed is, that inadequacy of price, at a sale made under process of law, is not sufficient, without additional circumstances, to invalidate the sale (not on a question of confirmation). But in cases where the disproportion is so enormous as in this, but slight additional circumstances will justify the inference that the sale is fraudulent. 27 Tex. 139.

Appeal from Harris. Tried below before the Hon. Peter W. Gray.

Petition filed by appellee May 6th, 1854, against appellant. It averred title in the plaintiff to a certain lot of ground in the city of Houston; that he was in peaceable possession of the same on the 1st day of September, 1852; but that on said 1st day of September, 1852, said defendant with force and arms, broke and entered into and upon said premises, and then and there ejected plaintiff therefrom, and other wrongs then and there did, to the damage of plaintiff $1,000. Plaintiff further alleges, etc. The petition went on to allege the facts which were afterwards offered in evidence, and concluded with a prayer for judgment for the possession of said land, that defendant's title deeds be cancelled, etc., offering to pay the price bid at the sheriff's sale. There was no indorsement to the effect that the action was brought as well to try title as for damages. By amendment, H. H. Allen and Hogan were afterwards made parties defendant.

S. L. Allen answered by plea of not guilty; and by special plea of title as afterwards given in evidence; and afterwards by amendment, filed a plea of former recovery, to which last plea the court sustained exceptions. It was as follows, to wit: on the 6th day of October, A. D. 1852, the said plaintiff, by his petition filed in the office of the clerk of this court, impleaded this defendant in a certain action of trespass to try the title to the same land and premises described in his original and amended petition in this suit. And afterwards, to wit: at the fall term, 1852, of this court, this defendant filed his answer to said petition, wherein he pleaded that he was not guilty of the several supposed trespasses in the plaintiff's petition alleged against him, and put himself upon the country. And issue was thereupon joined upon said plea; and afterwards, to wit: at the fall term, 1853, of the court, to wit: on the 16th December, 1853, the said cause came on to be tried, and was then and there tried, in due course of law, by a jury of the country, duly impaneled, chosen, sworn, etc., in that behalf; which said jury, on said trial, then and there, rendered their verdict as follows, to wit: “We, the jury, find for the defendant.” Wherefore afterwards, to wit: on said last named day, it was ordered, adjudged and decreed, by the court, that the plaintiff take nothing by his suit, and that the defendant, Allen, go hence discharged, and recover of the said plaintiff, Charles Stephanes, all costs herein expended, as by the record of the proceedings in said cause, now remaining in this court, more fully appears; which said judgment still remains in full force and effect, not in the least reversed or made void; and this the defendant is ready to verify by said record.

The evidence was as follows:

J. J. Cain, for plaintiff. Knows lot at foot of Main street, opposite his warehouse. It was worth, in February, 1851, in my opinion, $600. I was willing to give that amount. Somewhere about that time I offered plaintiff that amount for it. It was after I had seen advertisement of sale. The sale was to be at the court house door, which was then at Schrimpf's building. I went there on the day appointed to buy it, but the sheriff adjourned the sale and I left. Do not remember seeing plaintiff there. Sam. Allen, H. H. Allen, T. M. Bagby and, I think, Wm. R. Baker were present; I saw them talking together; I saw the sheriff, also, talk with them, but don't know what about. Never saw any other advertisement, nor attended any other sale. Don't remember to have seen H. H. Allen and Baker consult together. The lot is now worth $1,500. There was a shed-building put on the lot by defendant Allen; it was a temporary building and was taken away some two years ago.

Cross-examined. Dont remember the month or year, or season when I saw the advertisement, and when I attended. I understood the sheriff to say that the sale was over; can't say that sheriff talked more with Allen, etc., than with others. They may have been talking of other matters.

Re-examined. Am certain the lot in question was advertised. When the sheriff said the sale was over, I asked him why this lot was not sold, and he said the parties had compromised, or settled the execution. If plaintiff had been present I think I should have seen him.

Wm. R. Baker, witness for plaintiff, shown an execution against Stephanes, from probate court. It was dated February 27th, 1851; was in favor of H. H. Allen, chief justice, and other officers of court, for costs; was endorsed with a levy on the lot in controversy, March 11th, 1841; and returned April 1st, 1851, settled in full, without a sale. Witness testified as follows:

Witness was clerk of the county court and issued said execution at instance of the Chief Justice Allen, who had control of it. The lot was advertised for sale under it, and no sale had, because the execution was settled a day or two before, or on the day of sale. The lot was levied on with another execution and advertised for sale; don't remember whether before or after the execution that was settled. I attended the sale when the lot was sold to H. H. Allen. Bagby and Sam Allen were not present during the day, and I have no recollection of seeing Mr. Cain. When the sale commenced I stepped out of my office with the intention of bidding for the property for the benefit of Sam Allen and T. M. Bagby. I found that H. H. Allen had already made a bid, and I asked him whether he was bidding for himself; he said he was bidding for Allen & Bagby, and I then told him that I had intended to bid for the same purpose, but if that was the understanding, I would not bid and declined doing so. I had no direction or authority from S. Allen or Bagby to bid for them. Bagby is my brother-in-law; and, knowing the situation of the lot, and that it would be beneficial to them to own it, I acted as a self-constituted agent to buy it. I remember Mr. Henderson speaking to me about the sale, but can't recollect precisely what passed; may not have been so explicit in stating my motives for bidding, as I have now. I intended to bid for Allen & Bagby, but declined on the understanding that H. H. Allen was bidding for them. If Bagby was not interested with Sam Allen I should not have thought of bidding at all. The indorsement of receipt on the execution from probate court is in the handwriting of H. H. Allen. When I asked H. H. Allen for whom he was bidding, he may have said for Sam Allen, but my recollection is not distinct as to the precise language; my understanding was, his bid was to be for both Allen and Bagby.

B. F. Tankersly. Brought suit before this one, against S. L. Allen for Stephanes; had a conversation with S. L. Allen about it; he wanted to compromise the matter and offered 700 acres of land on Galveston Bay for Stephanes' title. Don't know the value of the land, but I thought it of less than Stephanes' title and so advised him. The lot adjoins Allen and Bagby's warehouse on Main street, and is of more value to them than any one else, from its position.

W. C. Reeves, for defendant, proved justice's docket and judgment of Fuller, Administrator of Young, v. Stephanes; that he issued execution on it at the date stated on docket; can't remember what has become of it. It may have been returned by sheriff. The papers have been in court several times in hands of the lawyers and others, and may have been mislaid; has carefully searched for it in his office and cannot find it. Saw the sheriff's advertisement of the lot, stating that he had levied on the lot in suit.

There was an agreement as follows: It is agreed by the parties in this case, that the substance of the proceedings appearing on docket of W. B. Reeves, the justice of the peace in the suit of Nathan Fuller, Administrator, etc. v. Stephanes, be inserted in the statement of facts as follows: It is agreed that there was a valid, subsisting and unsatisfied judgment in favor of Nathan Fuller, Administrator, etc. v. Charles Stephanes, for $30, with interest from February, 1849, and costs of suit appearing on said docket, rendered on the 5th day of October, 1850; that execution was regularly issued on said judgment on the 17th of October, 1850; that said execution was levied on property which was sold for the sum of $21.50, and the execution returned, with that sum returned thereon, not satisfied, December 11th, 1850, by F. L. Viven, a constable of Harris county, and that an alias...