Atcheson v. Hutchison
| Decision Date | 01 January 1879 |
| Citation | 51 Tex. 223 |
| Parties | DANIEL D. ATCHESON v. J. C. HUTCHISON ET AL. |
| Court | Texas Supreme Court |
APPEAL from Grimes. Tried below before the Hon. James R. Burnett.
The facts are fully stated in the opinion.
Daniel D. Atcheson, for appellant, cited Sayles' Prac., sec. 598; Beale v. Ryan, 40 Tex., 409;San Antonio v. Lewis, 9 Tex., 69;Teas v. McDonald, 13 Tex., 349; Mackay v. Martin, 26 Tex., 61;Brown v. Lane, 19 Tex., 207;Ayres v. Duprey, 27 Tex., 606; Freem. on Executions, 297; Paschal's Dig., art. 3775; Taul v. Wright, 45 Tex., 388;Chamblee v. Tarbox, 27 Tex., 145; Rover on Jud. Sales, secs. 403, 404; Bryan v. Bridge, 6 Tex., 142.
J. C. Hutchison, for appellees, cited Baker v. Clepper, 26 Tex., 634;James v. Fulcrod, 5 Tex., 513; Paschal's Dig., art. 3775; Cook v. De La Garza, 13 Tex., 431;Kendrick v. Rice, 16 Tex., 259;Alexander v. Miller, 18 Tex., 897;Ross v. Lister, 14 Tex., 473;Howard v. North, 5 Tex., 315;Herndon v. Rice, 21 Tex., 457;Andrews v. Richardson, 21 Tex., 296.
D. D. Atcheson brought this suit to set aside an execution sale of sundry tracts of land to Hutchison and the other defendants and to cancel the deeds made to them by the sheriff. The grounds on which the sale was attacked were: 1st. That the execution was controlled by Hutchison and the other purchasers, and was issued in violation of a binding agreement. 2d. That the levy was made in disregard of his right to point out property, and in disregard of the statute regulating the order in which property of different kinds is to be levied on. 3d. That the levy was excessive and oppressive. 4th. That the price at which the lands were sold was grossly inadequate, alleging a conspiracy between defendants to procure his lands at a nominal price. No question was made below, or is made here, that the necessary parties were not all before the court; nor are any questions presented requiring a fuller statement of the pleadings. The trial resulted in a verdict and judgment for defendants.
The facts developed on the trial, so far as they are material to the questions to be passed upon, are as follows: On February 13, 1874, Bateman and others recovered in the District Court of Grimes county a judgment against one Taliaferro, as principal, and Atcheson, as surety, for the sum of $5,908.29, with eight per cent. interest from that date. Execution having issued on this judgment, Atcheson, in March, 1874, sued out a writ of error, giving a supersedeas bond. Afterwards an agreement in writing was made between Atcheson and the judgment plaintiffs, represented by their attorneys, (Hutchison and Carrington,) that Atcheson would pay on the judgment, on or before March 1, 1875, the sum of $1,000, and would abandon his writ of error, in consideration whereof the owners of the judgment agreed not to permit execution to issue before December 1, 1875. The alias execution issued on June 18, 1875, was levied, on July 12, on sundry tracts of land as Atcheson's property, and the sale complained of was had on the first Tuesday in August. No evidence was adduced of the payment of the $1,000 on March 1, but, on the part of Atcheson, it is claimed that the payment appeared from the following instruments of writing introduced by defendants:
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¦“$1,050.¦GALVESTON, TEXAS, March 3, 1875.¦
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Three months after date pay to the order of myself one thousand and fifty dollars, value received, and charge to account, with interest at twelve per cent. per annum after maturity.
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¦(Signed)¦DANL. D. ATCHESON. ¦
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To Wolston, Wells & Vidor, Galveston.”
On the face of this draft is written:
“GALVESTON, March 3, 1875.
Whereas on the 3d day of March, 1875, Wolston, Wells & Vidor advanced for D. D. Atcheson to me, as attorney for the plaintiffs in the judgment of R. L. Heflin and others against D. D. Atcheson and others, obtained in the District Court of Grimes county, said amount not to be credited on said judgment, but to pass to them (Wolston, Wells & Vidor) one thousand dollars interest with the other plaintiffs in said judgment, to bear the interest that the judgment bears from this date: Now, I agree and contract that if in ninety days from this date the said Atcheson does not pay them the said thousand dollars, and the interest added in his draft accepted by them, then I will proceed to collect said judgment by execution, levy, and sale, in the interest of the plaintiffs therein and said Wolston, Wells & Vidor, and of the amount collected, if all, will pay them said thousand dollars and the accrued interest at the judgment rate, but if only a part is collected, then I will pay to them their pro rata in the proportion (of) their interest of one thousand dollars bears to the whole amount of the judgment at this date. I, in effect, become coördinately with the other parties their attorney for the collection on said judgment of the one thousand dollars they own in the same, and they, in effect, plaintiffs owning that interest in said judgment. And I obligate myself to respect the equal rights of themselves and the plaintiffs, according to their ratio of the same.
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¦(Signed)¦J. C. HUTCHISON. ¦
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P. S. When Atcheson refunds the $1,000 to W., W. & V., he is to have credit of that amount on the judgment.
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¦(Signed)¦J. C. HUTCHISON.” ¦
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Also the following:
“In consideration of the payment of one thousand dollars by Wolston, Wells & Vidor to me, I hereby agree that execution issue on that certain judgment obtained by R. L. Heflin and others against me at the February Term, 1874, of the District Court in and for the county of Grimes, State of Texas, in ninety days from the date hereof; provided, nevertheless, that if I pay to the said Wolston, Wells & Vidor said sum of one thousand dollars on or before the expiration of said ninety days, then this agreement to be void; otherwise to remain in full force and effect.
GALVESTON, March 3, 1875.
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¦(Signed)¦DANL. D. ATCHESON.” ¦
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The only other evidence bearing on the subject of the payment by Atcheson, was Hutchison's testimony that Atcheson did not pay the $1,000 on the 1st day of March as he agreed to, and did not pay the money to Wolston, Wells & Vidor as per agreement; that witness held the draft of Atcheson to Wolston, Wells & Vidor, who had been paid their interest in the judgment.
The sheriff testified that he went to Atcheson's, which is one mile north of Navasota, three times to get a levy, but found him away,--once on the 21st of June, and again on July 7. Other witnesses testify to two visits of the sheriff to Atcheson's house, seeking a levy, and it appears that Atcheson was informed of the fact of his having been there for that purpose, and that Atcheson returned to his house from Galveston on July 9. A witness testified that Atcheson usually went to Navasota every day, and could have been found by any one inquiring for him. This witness testified about four mules owned by Atcheson, of which he informed the sheriff, but knew of no other personal property.
The levy was made on July 12, without, on that day, going to Atcheson's or inquiring for him, on land pointed out by the attorney for the plaintiffs in execution, and recites that the sheriff went on two separate occasions to the residence of Atcheson, found him absent from the county, and found no personal property on which to levy. The levy was on eight hundred and forty-eight acres of the Campbell league, sold to Templeman, one of the defendants in this case, for $155; forty acres sold to defendant Hutchison for $200; two hundred and four acres of the Whiteside league to Hutchison for $93.89; two hundred and four acres out of east half of Arnold league, sold to Hutchison for $75.48; and seven hundred and thirty-two acres of the west half of the Arnold league, sold to Owen and Hutchison for $732. The evidence is that this last tract of land was valuable; some of the witnesses say worth $15 per acre; but some of the same witnesses say that at sheriff's sale it might not sell for $5 per acre, and one witness says at such sale it might sell from $1 to $5 per acre. There was on it about two hundred acres of open land, renting usually at about $5 per acre. The record shows nothing as to the value of the other tracts levied on and sold, further than may be inferred from the price for which they sold. It was in evidence that, on the day after the levy, the sheriff met Atcheson in the city of Navasota and told him of the levy. He says he did not then ask Atcheson to point out property, and it does not appear that Atchison then claimed the privilege of doing so. A mistake in one of the notices of sale--Thursday being written for Tuesday--was then corrected, at Atcheson's suggestion.
On the day of sale, Atcheson warned purchasers not to buy, claiming that the levy was irregular and that the purchaser would get no title. On the other hand, Hutchison testified that he tried to make the lands bring a good price, and other witnesses testify that he staked his professional reputation that the title was good. Several witnesses testify that Atcheson's action at the sale tended to depress the prices, and that Hutchison did all he could to encourage persons to bid. It appears, however, that at the time of the sale a suit was pending, brought to June Term, 1874, in behalf of Bateman, Heflin, and others, the parties who had recovered the judgment against Taliaferro and Atcheson, to satisfy which the sale was had, in which Atcheson's title to the seven hundred and thirty-two acre tract was assailed, and that this suit was brought by Hutchison as attorney. The papers and proceedings in several cases were introduced in...
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