Meyer v. Opperman

• Decision Date: 28 January 1890
• Citation: 13 S.W. 174
• Court: Texas Supreme Court
• Parties: MEYER <I>et al.</I> <I>v.</I> OPPERMAN.

13 S.W. 174

MEYER et al.v.

OPPERMAN.

Supreme Court of Texas.

January 28, 1890.

Commissioners' decision. Appeal from district court, Galveston county.

C. L. Cleveland, for appellants. Wheeler & Rhodes, for appellee.

HOBBY, J.

This suit is an ordinary action of trespass to try title, brought on February 28, 1877, by Gustave Opperman, originally, against John Berlocker. By amendment filed in February, 1885, the death of said Berlocker was alleged, and his administrator, G. A. Meyer, was made a party. It was also alleged that Louisa Jones, John and Charles Berlocker, were the heirs at law of the deceased John Berlocker, and his first wife, Anna, also deceased, and that the second wife of said John Berlocker, Louisa J., and her minor children, Bertha, Sextus, Leo, and Robert, survived said John Berlocker, and were made parties. The adult heirs pleaded not guilty, and limitation. On November 5, 1885, an amended petition was filed, alleging the purchase, since the institution of the suit, by petitioner, of the interest of Louisa, John, and Charles Berlocker, the issue of the first marriage, between John Berlocker and his wife Anna. The second wife, Louisa J., and her minor children, were alleged to be in possession of the property sued for. The suit was prosecuted against G. A. Meyer, the administrator of John Berlocker's estate, and the second wife, Louisa J., who survived Berlocker, and who were alleged to be in possession. On December 10, 1886, Louisa Berlocker and the said minors, by their guardian, filed their answer, containing general demurrer, and pleaded specially that the plaintiff deraigns his title to the property in question through a deed made by Robert Ruff, as trustee, of date September 11, 1876, under power contained in trust-deed made by John Berlocker and his second wife, dated January 1, 1874, and a fraudulent sale thereunder, and a pretended purchase by appellee, who was the beneficiary in said trust-deed; that said sale was in violation of the terms and conditions of said trust-deed, and for a grossly inadequate price; that, by the terms and conditions of the trust-deed, it was made the duty of the trustee, before any sale should be made, to first advertise in some newspaper printed in Galveston for 20 days; that the trustee abused the discretion invested in him in this respect, and unfairly, and in violation of the spirit and intent of the said provision, selected a printed sheet called "The Civilian," in which he pretended to give the notice required; that the sheet called "The Civilian" was an obscure paper, not generally read, or generally circulated, printing only a few hundred sheets, not read or sought by the general public, and the advertisement therein did not give reasonable, fair, and proper notice of the sale; that there were other newspapers printed in the city which would have given, by advertisement therein, such fair notice and notoriety, notably the Galveston News; that the sale thereunder was for a price grossly inadequate and shocking, to the beneficiary, of $500 for lot 5, and improvements, and $500 for lot 2, embraced in same sale; that Opperman paid no part of the purchase money, but indorsed a credit of the amount bid on the note which said trust-deed was given to secure; that there was on said lot 5 a large three-story brick building, then worth $12,000, and the ground, worth $5,000. There was prayer to set aside the sale, and annul the deed. Plaintiff made no reply to the answer of the defendant. The cause was tried by a jury, resulting in a verdict for the plaintiff. Judgment was rendered against Meyer, the administrator of Berlocker, and Louisa Berlocker, and the minor defendants.

The error first assigned in the brief of appellants is the court's action in overruling the objections of the defendants to the proof offered by plaintiff, and admitted by the court, with respect to liens claimed by the plaintiff as subsisting upon the property in his favor prior to the 11th day of September, 1876, and asserted when the lot was sold by Robert Ruff, trustee, and at which sale Opperman was the purchaser. On the trial, the witness Opperman was asked, in connection with the purchase of this property by him, what was the condition of this property with respect to other liens. He answered that there were liens upon it amounting to $8,000. This was objected to by the defendants because there was no allegation in the pleadings of such liens, and, the plaintiff having made no replication, by way of plea or supplemental petition to the defendants' answer, such evidence was inadmissible. The authorities cited by appellants in support of this assignment are the early cases of Paul v. Perez, 7 Tex. 345, and Rivers v. Foote, 11 Tex. 671, where the well-known rule was laid down that, if the defendant in this action pleaded not guilty, and a special plea setting up title in himself, and introduced evidence of such title, and the plaintiff wished to introduce rebutting evidence, he should make his allegations, as in other cases, to correspond with such testimony. In the cases cited the defendant pleaded specially, setting up title in himself; and it was held in the first case that the plaintiff could not prove a forfeiture of the title so pleaded without proper allegations as a predicate for the proof. So, in the second case, where the defendant set up title in himself, it was held that the plaintiff could not show an abandonment of the country by Stafford, under whom the defendant claimed, for the purpose of defeating his title, without having alleged it. It seems to us that the want of analogy between the cases cited and the present is manifest. There is no special plea by the defendants setting up title in them of any kind. Consequently, the evidence complained of is not in rebuttal of, nor does it attack, any title of the defendants. It is clearly relevant to the main issue made by the pleadings. The fairness of the sale, and the sufficiency of the price paid by the appellee for the land, was the decisive issue in the case made by the defendants' plea; and no further plea was necessary, on the part of plaintiff, for that purpose. Article 1197 of the Revised Statutes provides that "it shall not be necessary for the plaintiff to deny any special matter of defense pleaded by the defendant, but the same shall be regarded as denied unless expressly admitted." Under the operation of this statute, the special matter alleged by the defendant, that the property was purchased by plaintiff at a grossly inadequate price, was as effectually denied by the plaintiff, in the absence of an express admission of its truth, as if he had filed a special denial thereof. Evidence in support of defendant's plea, and in rebuttal of the same, was necessarily admissible. It will be noticed that the evidence referred to was in response to that brought out on cross-examination by the defendants. The witness Opperman had testified on cross-examination that "he paid $500 for the whole thing." On re-examination by the plaintiff, he was, in explanation of the price thus paid, asked as to the liens on the property. Under the familiar rules of evidence, we think it was competent for the witness to show the condition of the property, and the incumbrances then upon it, so that the jury could determine from all...