Chamblee v. Tarbox

• Decision Date: 01 January 1863
• Citation: 27 Tex. 139
• Parties: JOHN CHAMBLEE AND OTHERS v. HORACE TARBOX.
• Court: Texas Supreme Court

27 Tex. 139

JOHN CHAMBLEE AND OTHERS

v.HORACE TARBOX.

Supreme Court of Texas.

1863.

Ordinarily, in a chain of conveyances, similarity of name is sufficient evidence for the identification of a vendor with the purchaser in a preceding deed.

In this case, the coincidence of the given name of a married woman with that of a single woman, to whom in consideration of marriage land had been conveyed, was held sufficient, in connection with possession of the original title papers, and with recitals in the deeds, to establish a chain of title dependent for its continuity upon the question whether the married and the single woman were one and the same person, there being no evidence tending to a different conclusion.

Though recitals in deeds are, ordinarily, admissible in evidence only against parties and privies, yet, when the recital is of a matter of pedigree, which includes the facts of birth, marriage and death, it is evidence even against strangers to the deed.

Where the disproportion between the value of property and the price for which it is sold is enormous, slight additional circumstances will justify the inference that the sale was fraudulent; and, in order to authorize the interposition of the court, it is not necessary that such circumstances lead to the conclusion of actual fraud on the part of the purchaser.

NOTE.--A sale made under execution in violation of the order of plaintiff, and in which property has been sacrificed, may be set aside by motion in the court from which the execution issued, with notice to the purchaser, or by appealing to the equitable jurisdiction of the court, setting up grounds for equitable relief, offering to repay the purchase money, and to do equity. (Owen v. City of Navasota, 44 Tex., 517; Taul v. Wright, 46 Tex., 388.)

See the opinion for considerations influencing the action of courts in rescinding sales of property on the ground of gross inadequacy of price and other circumstances; and for distinctions taken between the rights of the original purchaser and those of his vendees for value without notice.

Though a party cannot insist upon the reversal of a judgment on account of the failure of the court below to give instructions which he neglected to ask, yet this rule is not applicable when the charge given by the court upon the questions involved is itself erroneous.

When a deed to land made by a sheriff under execution sale was impeached for fraud, on the ground of gross inadequacy of price and other circumstances, it was error for the court, by its instructions, to confine the jury to the isolated question, whether there was an unfair combination between the sheriff and the purchaser to sell and purchase the land at less than its value, and to exclude from their consideration the other circumstances affecting the question of fraud.

APPEAL from Falls. Tried below before the Hon. John Gregg.

Trespass to try title, instituted by the appellee against John Chamblee, William M. Newton and William Hinton, defendants, for the recovery of one-fourth of a league of land in Falls county.

The plaintiff deraigned his title from the defendant, Chamblee, by virtue of a sheriff's sale under execution, made on the 6th of February, 1844, the nature of which execution is explained in the opinion of the court. The purchaser at the sheriff's sale was John K. Lyle, to whom the land in controversy, consisting of 1,107 acres, was struck off at his bid of five dollars. On the 1st of March, 1844, Lyle conveyed the land to Lyman Tarbox, expressing in his deed a consideration of five hundred dollars. Lyman Tarbox, by deed of date October 7, 1848, conveyed the land to Jane Carroll, reciting as the consideration his approaching marriage with her. The remaining link in the plaintiff's title consisted of a deed dated April 1, 1853, from Lyman Tarbox and his wife, Jane M. Tarbox, to the plaintiff. Besides these two latter deeds, no evidence of the identity of Jane M. Tarbox with Jane Carroll was introduced.

The defendants pleaded not guilty, the limitations of three and five years, and fraud in the sheriff's sale in which the plaintiff's title originated; alleging gross inadequacy of price, and the other circumstances adverted to in the opinion, in support of their charge of fraud, and tendering to the plaintiff the purchase money paid by his remote vendor, Lyle, with interest.

The cause came to trial at the fall term, 1859. The plaintiff rested his title upon the conveyances already mentioned, together with a transcript of the judgment, proceedings and executions in the case of Jesse Tinnin v. John Chamblee, by virtue of which the sheriff's sale of the land was made. He further proved that the defendants, Newton and Hinton, claimed under Chamblee.

The defendants proved by two witnesses that at the time of the sheriff' sale, in 1844, the land was worth one dollar per acre, though one of the witnesses stated on cross examination that he could not say it would have brought that much.

The defendants asked the court to charge the jury that gross inadequacy of price might alone be sufficient evidence of fraud; that the recitals in the deed of Lyman Tarbox to Jane Carroll, and in that of Lyman Tarbox and his wife, Jane M. Tarbox, were not evidence that Jane Carroll and Jane M. Tarbox were the same person; and that if the plaintiff had failed to produce a complete chain of title from the sheriff down to himself, he could not recover. These charges were refused by the court.

The court instructed the jury that the deeds offered in evidence by the plaintiff were sufficient to establish his right to recover, unless the evidence proved fraud in the procurement of his title. That, in order to decide whether or not there was fraud in the procurement of the plaintiff's title, the jury would look to all the circumstances attending the sale, and if there was any unfair combination between the sheriff and the purchaser, to sell and purchase the land for less than its value, they should find for the defendants. That if there was no such combination, they would find for the plaintiff. That in this case, mere inadequacy of price was not sufficient to establish fraud, and in order to find fraud the jury must have other circumstances throwing suspicion on the fairness of the sale besides the smallness of the sum given for the land.

Verdict and judgment in favor of plaintiff. Motion of defendants for a new trial overruled.

Barziza & Gould, for the appellants.--It is contended that the court erred in refusing to instruct the jury that the recitals in the deeds offered by plaintiff were no evidence of the identity of Jane Carroll and Jane Tarbox, and in instructing the jury that the deeds were sufficient evidence to entitle plaintiff to a verdict. The recitals in a deed are only evidence against parties and privies, and do not bind strangers. (1 Greenleaf Ev., sec. 23 and note 2.) Whether Jane Carroll and Jane M. Tarbox were the same person, was a question of fact for the jury. It was material to make out the chain of plaintiff's title that they should appear to be the same person; otherwise his own evidence proved an outstanding title in Jane Carroll. It certainly was not for the court to assume, as it did, that Lyman Tarbox and Jane Carroll had intermarried, taking that question of fact wholly from the jury. Suppose Jane Carroll had died, and certain persons assuming to be her heirs had conveyed to plaintiff. Proof of the heirship would have been essential; just so with the proof of the marriage or identity of persons in this case. Identity of name does not in some cases dispense with proof of the identity of the person. If the charge be correct, then the recital of an intention is conclusive evidence that it was carried out; for the deed from Lyman and Jane M. Tarbox contains nothing to show that she had been formerly Jane Carroll.

The court erred in refusing to instruct the jury that they were at liberty to infer fraud from gross inadequacy of price. That inadequacy of price, although per se a ground of relief, may be so great as to shock the conscience or raise a presumption of fraud, in cases of ordinary sales, is well settled. The court doubtless proceeded on the ground that sheriffs' sales were an exception to this rule. In support of this proposition, the appellee has cited various authorities, but none which I have been able to find that come fully up to the question. In Hansford v. Barbour, 3 A. K. Marshall, 515, there was evidence tending to show how the sale was made, and the court say that inadequacy of price was not sufficient under the circumstances of the case. In Lessee of Cooper v. Galbraith, 3 Wash. Cir. C., 546, they decide that inadequacy of price is no ground for relief where the sale was fair and legal. In 2 Green. Ch., 460, the inadequacy only amounted to one-fourth of the value of the land, and the court say that the facts tended to show why the land brought no greater price. In Stockdale v. Young, Rice's Eq., p. 3, the court proceed apparently on the idea that inadequacy is no ground to set aside any contract. The evidence also showed the land to be in litigation. In short, I have found no case where gross inadequacy of price was set up, not as in...