Baker v. Clepper

• Decision Date: 01 January 1863
• Citation: Baker v. Clepper, 26 Tex. 629 (Tex. 1863)
• Parties: Y. BAKER AND OTHERS v. LEM. G. CLEPPER.
• Court: Texas Supreme Court

26 Tex. 629

Y. BAKER AND OTHERS

v.LEM. G. CLEPPER.

Supreme Court of Texas.

1863.

Where the exceptions to the answers and amended answers of defendant were not presented in the due order of pleading, and were intermingled in the replication with allegations of facts, so that it was difficult for the court below to act upon the one without reference to the other: Held, that, though objectionable, the court below was fully justified in overruling the exceptions.

Where numerous and complicated issues raised by the pleadings are fairly submitted to the jury, and there is evidence introduced to support the verdict, it must be held to be conclusive.

An excess of levy and gross inadequacy of the price for which land is sold at exeecution sale are questions properly to be submitted to the jury.

Inadequacy of price at a sale made under process of law is not sufficient, without additional circumstances, to invalidate the sale.

Held, that the jury were properly instructed that they, in determining whether a levy on land was excessive, and whether the price at which it was sold under execution was inadequate, should take into consideration the incumbrances, if any, upon the land, and the embarrassments and suspicions that have been thrown around the sale by the defendant in execution.

It has been repeatedly decided by this court that the title of the mortgagor of real estate can be sold under execution. Wright v. Henderson, 12 Tex. 43.

The effect of a mortgage to secure the purchase money executed simultaneously with the deed to the vendee is, that the legal title remains with the mortgagee or vendor of the land; but this in no manner prevents the interest of the mortgagor from being levied upon and sold.

The failure of a sheriff to make to a purchaser at execution sale a deed for the land, and the fact that the purchaser did not pay the amount of the bid to the sheriff immediately, will not vitiate the right or title of the purchaser acquired under the sale; nor does the fact that the defendant in execution tendered the amount called for in the execution and costs to the sheriff before the purchaser paid the amount bid, or before the sheriff executed his deed, in any manner affect the right or title of the purchaser.

APPEAL from Montgomery. Tried below before the Hon. Peter W. Gray.

This was a suit brought by appellant, Y. Baker, against appellee, Lem. G. Clepper, in the ordinary form of trespass to try title and for damages, to recover six hundred and forty acres of land.

Jonathan T. Pounds owned the six hundred and forty acres in controversy; also, one hundred and sixty acres adjoining, which he claimed as a pre-emption. He owned, also, a small steam-mill, situated on the pre-emption. In 1855, he entered into partnership with Y. Baker to build and run a large steam-mill. On the 29th day of November, 1855, Pounds sold the 640 acres in litigation to Y. Baker, subject to a mortgage in favor of W. F. Case, for $450. At the fall term, 1856, Pounds instituted proceedings in the district court of Montgomery county to have the partnership dissolved, for the appointment of a receiver, a sale of the partnership assets, and an application of the proceeds to the payment of the partnership liabilities. A decree was rendered, substantially as prayed for. Under this decree, both of the tracts were sold by the receiver, and Lem. G. Clepper became the purchaser. On the 3d day of February, 1857, the receiver made a deed to Clepper for both tracts of land, including the steam-mill and fixtures. At the fall term, 1857, Y. Baker in the same suit filed a cross-bill, making Clepper a party, and praying that the receiver's sale be set aside, and the deed to Clepper declared null and void. The court decreed that the sale be set aside, except the four acres upon which the mill was situated-- ordered the deed to Clepper for both tracts to be given up and canceled, and a deed to be made to Clepper for the four acres, including the mill. On the 17th May, 1857, the receiver made a deed for the four acres to Clepper. On the 28th day of February, 1857, one W. C. Hooker recovered a judgment in a justice's court of Montgomery county against Y. Baker for the sum of twelve dollars and sixteen cents, and the justice issued an execution on this judgment. On the 21st day of April, 1857, the sheriff levied upon the 640 acres in controversy, as the property of Baker, to satisfy the execution. On the 5th day of May, 1857, he sold the same, and Clepper became the purchaser. The return on this execution is as follows:

“By virtue of this execution I have this day levied upon all the right, title and interest of Yarborough Baker to six hundred and forty acres of land lying in Montgomery county, about eight miles north of Montgomery town, known as the land granted to Theophilus Henry and Uriah F. Case, and transferred by them to Uriah F. Case, and from said Case to Pound, and from said J. T. Pound to Y. Baker.

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                ¦April 21, 1857. ¦A. W. MORRIS.”¦
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“After legal notice by me posted, I did, on the 5th day of May, the first Tuesday, sell at auction the six hundred and forty acres of land levied upon by virtue of this execution, when and where Lem. G. Clepper bid sixteen dollars; and it being the highest and best bid, it was struck off to him.

A. W. MORRIS, S. M. C.

May 5, 1857.”

On the 2d day of November, 1857, Y. Baker brought this suit against Clepper, to try the title to the 640 acres of land, to have the deed from the sheriff to Clepper delivered up and canceled, and for damages. During the progress of the suit, N. Hart Davis and brother were made parties defendant to the proceedings.

The other facts are sufficiently indicated in the opinion of the court. There was a verdict for Clepper, and judgment rendered accordingly; motion for new trial overruled, and appeal prosecuted by Baker, Davis and brother.

N. Hart Davis, for appellants. We contend that the defendant cannot hold under the sheriff's deed. The land at and before the time of the sheriff's deed was in the hands of the receiver. Wiswall v. Sampson, 14 How. 52; 2 Story Eq. Jur. § 833 and note. The land at and before that time was claimed by Clepper, under the receiver's deed, illegally and fraudulently made and acquired, and afterwards set aside by the court. James v. Fulcrod, 5 Tex. p. 512;18 Id. p. 377. The land at the time was under a mortgage from Baker to Pounds, his vendor, for the whole of the purchase money. 5 Vesey Jr. 845; 2 Johns. Ch. 1, 23. The land was not levied upon and advertised twenty days before the day of sale, which fact Clepper well knew before he paid the purchase money and took the sheriff's deed. 1 Greenl. Ev. § 40; Moore v. Brown, 11 How. 414;11 Id. 309, 310; 4 Martin (La.), 242; Doe v. Smith, 4 Blackf. (Ind.) 228. Clepper did not comply with his bid at the sheriff's sale within a legal or reasonable time thereafter, nor until the execution had run out of date, nor until the purchase at the receiver's sale had been set aside. Catlin v. Jackson, 8 Johns. 550;Chapman v. Howard, 8 Blackf. 82. The levy was excessive. Freeman v. Wilson, 6 Johns. Ch. 411;Byers v. Surett, 19 How. 303;Ballard v. Anderson, 18 Tex. 377; 1 Carter (Ind.), 575; 4 Blackf. (Ind.) 228. The consideration given by Clepper was grossly inadequate. Burch v. Smith, 15 Tex. 219;Teas v. McDowell, 13 Id. 349;Briscoe v. Bronaugh, 1 Id. 337;Allen v. Stephens, 18 Id. 672;6 Johns. Ch. 411;4 Id. 118; Boyd v. Dunlap, 1 Id. 337; 19 How. 303. Before Clepper paid the purchase money or received the sheriff's deed Baker offered to pay the sheriff the amount of the execution. There was no appraisement of the land at the sheriff's sale, nor was the execution indorsed “sale without appraisement.”

Clepper & Jones, Porter & Palmer, for appellee.

MOORE, J.

The manner in which appellants presented their exceptions to appellee's answer if it was objectionable fully justified the court below in overruling them. The exceptions were not presented in the due order of pleading. They were intermingled in the replication with averments and allegations of facts, so that it would have been very difficult if not impossible for the court to have acted upon the one without reference to the other. The replication, indeed, seems rather to import that in view of the facts it alleges, appellee had no sufficient...