Johnson v. Richardson

• Decision Date: 06 February 1880
• Citation: 52 Tex. 481
• Parties: C. C. AND R. O. JOHNSON v. JOSEPH RICHARDSON ET AL.
• Court: Texas Supreme Court

52 Tex. 481

C. C. AND R. O. JOHNSON

v.JOSEPH RICHARDSON ET AL.

Supreme Court of Texas.

Feb. 6, 1880.

APPEAL from Liberty. Tried below before the Hon. Edwin Hobby.

Suit was brought in the District Court of Liberty county, March 31, 1876, by C. C. and R. O. Johnson, for the purpose of setting aside a sale of a tract of land containing about four hundred acres, and canceling a deed under a sale made by H. C. and Cornelia Stone, joint administrators of the estate of E. T. Branch, deceased. The administration upon the estate was opened in 1867, and was closed in December, 1875. The heirs of the estate were made parties defendant with Joseph Richardson, to whom the sale on first Tuesday (the 7th day) in October, 1868, and the conveyance dated November 5, 1868, purported to be made, and who were then in possession of the property.

The plaintiffs sued as creditors of the estate, they being the owners of a judgment in favor of Charles L. Cleveland, as executor of Lucy Johnson, deceased, mother of plaintiffs, for the sum of $6,880, rendered on the 21st of February, 1870. Their claim was originally a promissory note for $4,300, bearing date July, 1860, which had been presented February, 1868, and rejected by Stone, the administrator, established by suit, and ordered to be paid; but while the suit to establish the claim was pending, all the property of the estate had been sold out, and nothing had been paid them.

The plaintiffs were minors during this time. C. L. Cleveland, their uncle, was their guardian. The record of the deed to Richardson was burned in December, 1872, and the record of their judgment and proceedings of the Probate Court were also destroyed by fire in December, 1874.

The grounds upon which the sale and order to confirm the sale and conveyance were sought to be set aside, are--

1st. That the sale was made without the legal notice, and was not made in conformity with law and the order of court ordering the sale.

2d. That the sale was made for a grossly inadequate price, and in such manner and at such times as to prevent bidding thereon, and was unfair; that the tract was well improved, and only brought $422.50; and that this was less than one-tenth of its value.

3d. That the land did not bring three-quarters of its actual value, and did not bring a sufficient proportion of its actual value to give the court jurisdiction to confirm the sale.

4th. That the administrator furnished the purchase-money, and so became the real purchaser of the property.

5th. That the administrator and Richardson colluded together and purchased it with the agreement that Stone, the administrator, was to remain in possession and have a halfinterest in the property and rents and profits, which was so accordingly done, Stone paying no money, but allowing Richardson half of what he bid it in at, for an undivided half of the property.

6th. That the property was not sold to the highest and best bidder; that Wharton Branch and his sister Anna held preference claims, amounting to $518, to pay which the land was sold; that he offered to bid, and did bid, and that the bid was refused; that he would have made the land bring $518, or bid it in, and that if the tract had sold for enough to pay the preference claims, the balance of the estate would have gone to pay the creditors.

Plaintiffs offered to repay all sums of money paid out for the land for the benefit of the estate, and, as part of their relief, prayed that their judgment be substituted, and that the land be subjected to the payment of their debt.

After the filing of the suit, one of the heirs of E. T. Branch having died, G. W. Davis was appointed to represent her minor child, Edith C. Cade; and Joseph Richardson having also died, his widow and executrix, Jane Richardson, was made defendant.

The answers of Briggs and wife and Moss and wife asked that no judgment for costs be entered against them.

The answer of Edith C. Cade, by her guardian ad litem, G. W. Davis, adopted the averments of plaintiffs' petition and prayer, in so far as it sought to set aside the sale and order confirming sale and conveyance to Richardson.

After the jury was impaneled it was discovered that one Sam Johnson was a member of the jury, whose sister and niece were the wives of two of Mrs. Richardson's brothers, John and Sam Partlow, the name put on the jury list having been S. H. Johnson, and plaintiffs supposing it to be another person, failed to challenge him by reason of the mistake. This fact appears only in the motion for new trial sworn to. No supporting affidavits were filed.

Henry Deneke, C. B. Garrard, Cornelius Devore, and Joe Hart, Robert Daniel, Frank Cudrich, and William Rouse, having stated, on the trial, that at divers times during the year 1869 said Stone, who was then administrator of E. T. Branch's estate, and then in possession of the land in controversy, raising a crop thereon, said to them that he was equal co-owner with Richardson in the cabins, fences, and improvements on the land, and in the crops then growing thereon, and in the horses and mules and farming utensils thereon, and were equal owners and partners in the land, and his share in all of which he offered to sell, and that part of Stone's statements relating to the land having been objected to by defendant Richardson, was excluded by the court; to which plaintiffs excepted.

The court also, on objection of Richardson, excluded the testimony of H. Deneke, C. Devore, C. B. Garrard, and others, offered to contradict and explain testimony of H. C. Stone, whose deposition had been taken by Richardson, and for whom he was the material witness; the testimony excluded being that Stone, while administrator and while in partnership with Richardson, and in possession of the land, had said to the witnesses that he had furnished Richardson the money with which he had bought in the place, and that Richardson had conveyed to him on that account one-half the land for one-half of what Richardson had bid in the same; to which plaintiffs' ruling excepted. Other facts in this regard will be found in the opinion.

The plaintiffs' counsel also asked the court to charge the jury that fraud may be proven by circumstances, and that gross inadequacy of price, the remaining in possession by the vendor and the partnership by the administrator and vendee in cultivating the land sold, and subsequent ownership of one-half of the land during the following year, &c., are circumstances, if proved, from which the jury may infer fraud; also that the sale required twenty days' notice thereof to be given; that an administrator is not allowed by law, no matter how fairly he may in other respects appear to act, to buy in property of the estate sold by him, or to purchase any interest therein, directly or indirectly.

The charge of the court submitted to the jury two issues,--that the suit was instituted first to substitute a judgment against the estate of E. T. Branch, and second, to set aside a sale to a tract of land and cancel the title under said sale made to defendant Richardson,--and directed the jury, if they believed the judgment was obtained and the record had been destroyed, “to find for plaintiff, and say in your verdict, ‘We, the jury, find for the plaintiffs on the first issue,’ 'DD' &c., with a further charge referred to in the opinion.

The verdict on this charge was: “We, the jury, find for the defendant,”-- without containing the names of the parties for and against whom it was rendered.

The plaintiffs made their motion for new trial, setting up: “* * * 2d. The excluding the declarations of H. C. Stone, while in partnership with Richardson and in possession of the land, explanatory of the possession and extent of the partnership. 3d. The excluding the testimony of C. Devore, C. B. Garrard, and others, to explain and contradict Stone's testimony. 4th. The refusing the charges asked for. 5th. That the verdict is not responsive to the issues presented in the charge, or either of them. 6th. That the verdict is defective and cannot support a judgment, and although the evidence to prove the first issue was uncontradicted and conclusive, yet the verdict was contrary thereto. 7th. That the juror Sam Johnson was doubly related to defendant Richardson, his sister and niece having married two of Mrs. Richardson's brothers, and that it was not known to plaintiff until after the impaneling of the jury that this Sam Johnson was the person meant by S. H. Johnson, the name put on the jury list, or he would have been challenged; that he became the foreman of the jury, which was supported by affidavit. 8th. Other errors apparent of record. The minor, Edith Cade, moves the court for a new trial for all these grounds, and, in addition thereto, that the charge is not a clear statement of the law of the case; that the second paragraph of the charge precluded the jury from arriving at the conclusion that the administrator was the real purchaser; that the portion of the charge directing the jury to find for Richardson on the second issue is so expressed and stands in such condition with respect to the whole charge as must have misled the jury; and that the charge failed to separate questions of law from those of fact, and left the jury the solution of mixed questions of law and fact.”

The plaintiff, amongst other questions, on cross-examination of H. C. Stone, by deposition, asked him if Richardson did not hold his warranty deed for one-half the land in controversy, and he answered: “I think he does.” Whether Richardson ever gave him any conveyance, or receipt, or agreement for part of the land, and also the dates and contents of any deed, or receipt, or document by either Stone or Richardson to the other, he answered: “I don't think I ever had any conveyance from Richardson.” Being asked if he did not offer to sell H. Deneke one-half the land during the year 1869, he answered: “I don't remember telling Deneke anything about it. I may have proposed...