Marshall v. Marshall

• Decision Date: 25 October 1912
• Citation: Marshall v. Marshall, 150 S.W. 755 (Tex. App. 1912)
• Parties: MARSHALL v. MARSHALL.
• Court: Texas Court of Appeals

Page 755

150 S.W. 755

MARSHALL v.MARSHALL.

Court of Civil Appeals of Texas. El Paso.

October 25, 1912.

Rehearing Denied November 13, 1912.

Error from District Court, El Paso County; A. M. Walthall, Judge.

Suit by May Marshall against K. T. Marshall. Decree for complainant, and defendantbrings error. Reversed.

Frank G. Morris and Sam B. Gillett, both of El Paso, for plaintiff in error.W. B. Ware, of El Paso, for defendant in error.

McKENZIE, J.

Defendant in error, May Marshall, as plaintiff sued plaintiff in error, K. T. Marshall, as sole defendant in the district court of El Paso county to set aside the sale and for the recovery of three certain lots situated in the city of El Paso.The sale was made under execution issued out of the justice court of precinct No. 1 of El Paso county upon a judgment against the defendant in error.The allegations in plaintiff's petition are to the effect that before the hour at which the sale was to take place the plaintiff compromised and settled with the plaintiff in execution the said justice court judgment, and in said compromise the judgment plaintiff promised to stop the sale of the lots.Before the sale of the lots took place, the plaintiff notified the defendant that she had compromised and settled the judgment, and notified him of the promise made to her by the plaintiff in execution that the sale of said lots had been abandoned and would not take place.Other allegations in the petition, when taken with the foregoing, are sufficient, we think, to charge the plaintiff in error with the fraudulent purchase of said lots at said sale.It is also alleged that the purchase money paid by the plaintiff in error for the lots at the sale was paid into the justice court, and that the plaintiff in execution refused to accept any part thereof, upon the ground that the judgment had been settled by the plaintiff before the sale.It is also charged that the purchase money, after deducting the costs of court, was still in the hands of the justice of the peace, and no part of same went to the liquidation of the judgment debt.The case was tried by the court without a jury, and judgment was rendered for the plaintiff for the recovery of the lots, from which judgment the defendant appeals.

Failure to make the plaintiff in execution a party to the suit is ground for special exception to the petition.This exception was overruled by the trial court, which action is assigned as error.

We are of the opinion that from the allegations in the petition the plaintiff in execution became a necessary party to the suit.The general rule is that, in an action to set aside a sale made under judgment, both the plaintiff in judgment and the purchaser of the property at the sale should be made parties.Ewing & Wilson v. Wilson, 63 Tex. 88;Toler v. Ayres, 1 Tex. 398;McKinney v. Jones, 7 Tex. 598, 58 Am. Dec. 83;Good v. Coombs, 28 Tex. 34.The allegations in the petition are insufficient to takethe case from the general rule, and we are of the opinion that the assignment of error should be sustained.

By the second assignment of error, it is contended that the trial court erred in overruling the general demurrer on the ground that no tender was made of the money paid by defendant for the purchase of the lots at the execution sale.The answer to this is that sufficient facts are alleged in the petition to charge the defendant with fraud in the purchase of the lots, and also to charge the defendant with notice of the compromise and...