Johnson v. Crawl

• Decision Date: 09 November 1881
• Docket Number: Case No. 1094.
• Citation: Johnson v. Crawl, 55 Tex. 571 (Tex. 1881)
• Parties: C. M. JOHNSON v. J. B. CRAWL.
• Court: Texas Supreme Court

55 Tex. 571

C. M. JOHNSON

v.J. B. CRAWL.

Case No. 1094.

Supreme Court of Texas.

Nov. 9, 1881.

APPEAL from Kaufman. Tried below before the Hon. Green J. Clark.

Amongst other charges given, the jury were told that if they should believe from the evidence that the sheriff had been notified by the plaintiff in this execution, or his attorney of record, that he would be present at the time of the sale, and that he desired to bid on the land, and that the sheriff believed, or had reason to believe, that Johnson, the bidder, was present to represent the plaintiff or to bid for him, and that the sale was made at an unusually early hour on a very cold and inclement day, while but few bidders were present, and thereby the land sold for less than it otherwise would have brought, and that in fact Johnson, the bidder, did not represent the plaintiff in the execution, and that thereby the plaintiff lost his debt or any part of it, then the jury should find for the plaintiff. But if the jury should believe from the evidence that the land was sold between the hours of 10 o'clock A. M. and 4 o'clock P. M., and at the usual hour of sale, and that the day was such as that bidders might have reasonably been present, and that the sale was fairly and regularly made, and in such a manner that persons desiring to bid on the land had a fair and reasonable opportunity to be present and bid on the same, then they should find for defendant.

C. S. Robertson and Slaughter & Dillard, for appellant.

I. If the sheriff sell land to an innocent purchaser upon an inclement day, and the property brings less than its value, the only recourse of the plaintiff in execution is against the sheriff. The sheriff is authorized and empowered to sell property upon public sale days in the absence of the plaintiff in execution. “ Vigilantibus, non dormentibus, jura subservient.” The laws assist the vigilant; not those who sleep. Broom's Legal Maxims, p. 892.

II. If the plaintiff, by the use of ordinary diligence, could have prevented the sale of the land by the sheriff, and failed to do so, he has no right to complain. Freeman on Executions, § 303. “ Nullus commodum caperepotest de injuria sua propria.” No man should take advantage of his own wrong. Broom's Legal Maxims, p. 279.

Terrell, Smith & Word, for appellee.

I. The court did not err in permitting plaintiff to show the practice of the sheriff in making sales in similar cases at an hour subsequent to 12 o'clock M., for the purpose of negativing laches on his part in not being earlier at the place of sale. Freeman on Ex., § 288; 10 Serg. & Rawle (Penn.), 261; Railroad Co. v. Knapp, 51 Tex., 569.

The day of sale having been so inclement as to prevent the attendance of bidders, and the land in consequence having brought less than it otherwise would, the proper remedy for the party aggrieved was that pursued in this case. Freeman on Ex., § 308; Roberts v. Roberts, 13 Gratt., 639; Freeman on Ex., § 310.

GOULD, CHIEF JUSTICE.

Crawl, the owner of a judgment against Padon, under which judgment certain land had been sold and bought by Johnson, brought this suit against Johnson and Padon to have the sale set aside, alleging, amongst other grounds, the gross inadequacy of the price; that the sale was made at an unusual hour and on a very cold and inclement day, by reason of which facts but few bidders were present, and plaintiff himself was prevented from reaching the place of sale in time and from bidding for the land the amount of the judgment. That amount, including costs, was $1,370. The land sold for $1,000, Johnson being the only bidder. The insolvency of Padon was alleged and proved. From the evidence it may be inferred that the value of the land was between $1,300 and $2,000; also that the sale was on a very cold, inclement day, and between the hours of 11 and 11:30 A. M. The sheriff who made the sale testifies that he had been sheriff of that county for five years; that it had been his custom to sell land between 1 and 2 o'clock in the evening, and that before that day he never sold land before 12 o'clock, except at tax sales. The evidence also shows that the plaintiff had told the sheriff that he would be present at the sale, and it appears that the sheriff when he sold was under the impression that Johnson represented the plaintiff, but this impression seems to have had no foundation whatever.

It appears that the plaintiff traveled some distance to town to attend the sale, and reached there shortly before the sale, and because of the extreme cold went for a few moments into a room near the court house. There is evidence that in ten or fifteen minutes after his arrival he went to the court house, and to his surprise found the sale over. That whilst in the room he heard no outcry. The wind was blowing hard. On finding the sheriff and Johnson he at once claimed that the sale be had over, proposing to bid the amount of the judgment and costs. Johnson declining to assent, this suit was promptly brought, resulting in a verdict and judgment in plaintiff's favor, setting aside the sale. Johnson appeals, assigning numerous errors. Instead of disposing of these in their order, it is proposed to state our conclusions on the material questions involved.

We do not doubt that the judgment creditor was in equity entitled to have the sale set aside, if, without any default or laches on his part, but by reason of the inclemency of the day and the unusually early hour at which the sale was made, he was deprived of an opportunity to be present at the sale to protect his interest, and the result was, but few bidders being present, that the property of the insolvent judgment debtor...