Blum v. Rogers

Decision Date09 November 1888
PartiesBLUM <I>et al.</I> <I>v.</I> ROGERS <I>et al.</I>
CourtTexas Supreme Court

Appeal from district court, Hopkins county; J. A. B. PUTNAM, Judge.

In 1871 T. S. Rogers bought one acre as a residence lot. One George bought of the same grantor an acre adjoining Rogers' purchase. Rogers at once built upon his lot, and by consent of George extended his inclosure over his lot, which was adjoining, and on the west. Soon after, George agreed with Rogers that, if he would take up the purchase-money note for $150, he (Rogers) could have his (George's) lot. This agreement was not in writing. Very soon, Rogers, with consent and approval of his wife, paid to Ferrell, the grantor, $100 gold of his wife's separate money towards the purchase of the George lot, and subsequently paid the remainder, and took up George's note. Subsequently, one or two years later, George, receiving his note from Rogers, made a deed for the lot to Rogers. This suit was originally filed by T. S. Rogers and Mary Rogers, his wife, to remove a cloud from the title to the property sold under execution in favor of defendants against Rogers, and bought by Hyman Blum, one of the defendants. The execution under which the sale was made was issued January 12, 1882. It went into the hands of the sheriff of said county, who, at the instance of Hunter, attorney for plaintiffs, levied the same upon the lots in controversy in this suit, as well as upon other property, as the property of T. S. Rogers, in satisfaction of same. These lots and other property were advertised for sale, and on the 4th of February, 1882, were sold by the sheriff, with deed to the purchaser, Hyman Blum, for the price bid, $25 per lot. Rogers was present at the sale, and gave notice that the three parcels of the George acre, and the warehouse lot, the parcels of land involved in this suit, were the separate property of his wife, and, so far as the George acre was concerned, were part of his homestead, and the warehouse property was his place of business, and so were not subject to this levy and sale. Plaintiff's attorney bid in these lots at $25 each, and caused the amount of the bid to be credited on the execution, and directed the sheriff to make deeds to and in the name of Hyman Blum, which was accordingly done. Soon thereafter Rogers and his wife instituted these proceedings in said district court, to set aside said sheriff's sale and deed to Hyman Blum for the lots in controversy, and to remove said sheriff's deed as a cloud from their title, etc. A trial was had, and judgment for plaintiffs, which, on appeal, was reversed October 20, 1884. After the cause was reversed and remanded to the district court by this court, plaintiffs amended their pleadings, setting up more specifically the homestead exemptions, the separate rights of Mrs. Rogers, the wife, and the gross inadequacy of price at sheriff's sale, and the mala fides of the purchasers, etc. Upon the second trial of the case, on October 5, 1886, the jury brought in a general verdict, finding two-thirds of the block in controversy to be the separate property of the wife, and one-third subject to execution as community property, thereby finding against the plaintiffs upon the issue of homestead. A special finding was to the effect that the block was a homestead. Judgment was rendered, upon the verdict, for plaintiffs for the entire property. Defendants appeal.

Scott & Levi, for appellants. B. McKay, J. H. Dinsmore, and A. A. Henderson, for appellees.

WALKER, J.

Article 1328, Rev. St., provides that "the verdict of a jury is either a general or a special verdict." Accordingly, the courts have condemned the practice of submitting the general issue or issues, together with special issues, to the jury. But where the findings upon the special issues support the general verdict, and but the one judgment — in drawing from such facts so found the conclusion of law and upon the general verdict — can be rendered, such irregularity has been held immaterial. Heflin v. Burns, 70 Tex. ___, 8 S. W. Rep. 48. In this case the general verdict, finding two-thirds of the block in controversy to be the separate property of the wife, and one-third subject to execution as community, thereby found against the plaintiffs upon the issue upon the homestead. The...

To continue reading

Request your trial
45 cases
  • Needham v. Cooney
    • United States
    • Texas Court of Appeals
    • February 4, 1915
    ...of the sale." 2 Freeman on Executions (2d Ed.) § 301. Our Supreme Court quoted a portion of the foregoing excerpt in Blum v. Rogers, 71 Tex. 668, 9 S. W. 595, and "It would be an idle ceremony if the plaintiff, on buying at a sale for his benefit, should be required to actually hand over to......
  • In re Kim
    • United States
    • U.S. Bankruptcy Court — Northern District of Texas
    • May 19, 2009
    ...28 S.W. 352, 353 (Tex.Civ.App.-San Antonio 1894, no writ); Cohrs v. Scott, 161 Tex. 111, 338 S.W.2d 127, 130 (1960); Blum v. Rogers, 71 Tex. 668, 9 S.W. 595, 597 (1888); Parker v. Coop, 60 Tex. 111, 116 (1883); Ford v. Simpson, 568 S.W.2d 468, 470 (Tex.Civ.App.-Waco 1978, no writ); Robbins ......
  • Elmore v. McCammon
    • United States
    • U.S. District Court — Southern District of Texas
    • July 18, 1986
    ...trustee in favor of Heights. It is settled law in Texas that a credit so entered is the equivalent of cash. Blum v. Rogers, 71 Tex. 668, 679, 9 S.W. 595, 597 (1888). Further, even those parties whose standing to contest the sale is protected may not complain when a credit bid is entered in ......
  • Citibank v. NEW PLAN REALTY
    • United States
    • Court of Special Appeals of Maryland
    • March 9, 2000
    ...such amount of proceeds as he would be entitled to); Baker v. West, 120 Tex. 113, 120, 36 S.W.2d 695, (1931) (citing Blum v. Rogers, 71 Tex. 668, 677-78, 9 S.W. 595, (1888) (Where the plaintiff in an execution levied on land becomes the purchaser at the sale, the sheriff need not "exact pay......
  • Request a trial to view additional results
1 books & journal articles
  • Credit and Collections
    • United States
    • James Publishing Practical Law Books Texas Small-firm Practice Tools. Volume 1-2 Volume 1
    • May 5, 2022
    ...At the execution, judgment creditors can bid on property and then can credit their bid to the judgment. [ Blum v. Rogers , 71 Tex. 668, 9 S.W. 595 (Tex. 1888).] PRACTICE TIP The plaintiff may want to attend the execution sale and bid for the property up to the amount of the judgment. The pu......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT