Moore v. Miller

• Decision Date: 19 February 1913
• Citation: 155 S.W. 573
• Parties: MOORE v. MILLER et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

155 S.W. 573

MOORE v. MILLER et al.^†

Court of Civil Appeals of Texas. San Antonio.

February 19, 1913.

On Motion for Rehearing, March 19, 1913.

Appeal from District Court, Bexar County; Arthur W. Seeligson, Judge.

Action by H. J. Moore against M. B. Miller and others. Judgment for defendants, and plaintiff appeals. Affirmed.

W. W. Walling, James Routledge, and Frank H. Wash, all of San Antonio, for appellant. Ben P. Lane, F. C. Davis, and Webb & Goeth, all of San Antonio, for appellees.

FLY, C. J.

The history of this case to a certain date is fully set forth in the opinion of this court found in Hallam v. Moore, 126 S. W. 908, in which a consolidation of this case with others was set aside and the district court ordered to try it separately from the others. In pursuance of that order the consolidation of the suits was canceled and appellant filed an amended petition, setting up a statutory action of trespass to try title to certain lots of land in the city of San Antonio as against Marie B. Miller and husband, Charles Miller, Annie H. Allardyce and husband, George Allardyce, and H. E. Barnard, Jr. Appellees pleaded not guilty and general denial, and set up a cross-action against appellant for the land, alleging that H. E. Barnard died on or about May 15, 1897, leaving a will in which he attempted to claim as his separate property a large portion of the community estate of himself and his wife, Annie H. Barnard, now Allardyce, and sought to dispose of said property by his will; that said Annie H. Allardyce successfully contested and nullified said attempt in said will; that Floyd McGown qualified as independent executor of said will, but resigned, and John T. Hambleton, on May 23, 1901, qualified as administrator of the estate with the will annexed, and took charge of the entire estate of H. E. Barnard, deceased, and converted the same to his own use and benefit; and the said Annie H. Allardyce instituted proceedings to remove him, but that during said administration W. W. Walling, an attorney for appellant, conspiring with the administrator, instituted a suit against her, and caused a writ of attachment to be levied on property in the hands of the administrator, and cited appellees, the Allardyces, by publication; that a judgment was obtained in the justice's court, and the property in controversy was sold under an execution issued out of said court, although in the hands of the administrator; the property was sold to appellant, who had full knowledge of all the facts, at a totally inadequate price; that it had been agreed by the conspirators that the constable should buy one or more of the lots, and said lots were purchased by the constable's wife, but were afterwards transferred to appellant; that property of the value of more than $10,000 was sold for $138, which was unconscionable. It was further alleged that all of the debt, principal, interest, and costs did not amount to $250, and that sum was tendered into court, and it was pleaded that if such sum should not be sufficient appellees were ready, willing, and able to pay any such sum found to be due. It was alleged that the administration of the estate had been closed and appellees became the owners of all the property, that in controversy being a portion of the same, and they prayed for the cancellation of the justice's court judgment and all proceedings thereunder. The cause was submitted to a jury upon special issues, and, upon the responses thereto, judgment was rendered in favor of appellees for the land, and that the writ of attachment issued by the justice's court be canceled, and that all sales made by the constable be set aside and his deeds held for naught; that $210 out of the $250 deposited in court be paid to appellant, and upon his receipt of the same the judgment of the justice's court be set aside and canceled; that appellant take nothing by his suit and pay all costs of the court.

Appellant claimed the land through a constable's deed, dated December 4, 1906, made by virtue of an execution from the justice's court of Bexar county, issued under a judgment in a cause styled W. W. Walling v. Annie H. Allardyce and George D. Allardyce; $138 having been bid for the property, which consisted of a large number of city lots in San Antonio. In response to questions by the court, the jury found that the reasonable market value of the property at the time it was sold was $21,500, and an undivided half of it was worth half that sum, that W. W. Walling, H. J. Moore, and John T. Hambleton colluded and conspired together to keep the property from bringing a fair and adequate price at the constable's sale; that the constable and his deputy were not parties to the conspiracy; that because of the collusion and conspiracy the property did not bring a fair and adequate price; that from all the evidence, excluding that as to collusion and conspiracy, the property did not bring a fair and adequate price. The answers were made after considering the fact that there was an attachment lien on the property for $1,500 sued out by another party, and that there was a sale of some of the lots under another justice's court judgment for $22. Upon those findings the court rendered judgment for appellees for 83½ lots of land in San Antonio, which are fully described, being the lots claimed by appellant by virtue of the constable's deed under execution in case of Walling v. Allardyce.

The assignments of error from 1 to 12, inclusive, complain of the insufficiency of the evidence to show any fraud or irregularity in the sale. The evidence showed that Walling, Moore, and the administrator of the estate, Hambleton, had offices in a building occupied by the San Antonio Light, a daily paper; that Moore was connected with the paper; that the Allardyces were cited by publication, the same being published in the Light; that Moore made an affidavit as to the publication before Hambleton, administrator, and also notary public, that Walling had a claim against Mrs. Allardyce, and, after he brought the suit against her, transferred the claim to Moore and acquired an interest in the land from Moore. He bought the land in for Moore. The latter was not indebted to Walling. Deeds were made by Moore for lots to Walling and other parties, but were not recorded. Walling expressed indifference as to what lots were taken by Moore, or whether they were worth $75 or $75,000. One deed was made to Mamie Wilkens, wife of the deputy constable, and one to the wife of Charles Stevens, the constable, one to Edwin Routledge, and one to A. G. Monroe, who was afterwards employed by the Light. Walling knew that the administration on the estate was pending, as did Moore. The price paid for the lots at the execution sale was not 1 per cent. of their value.

The rule, as stated in Pearson v. Flanagan, 52 Tex. 280, is: "The weight of authority, including that of this court, is that mere inadequacy of price, of itself, is not sufficient to set aside a sheriff's sale otherwise valid; but the gross inadequacy of price, in connection with slight additional facts showing fraud, irregularity, or other circumstances calculated to prevent the property from bringing something like its reasonable value, might avoid the sale." This rule applies with particular force when the party who assisted in bringing about the circumstances is the buyer at the execution sale.

The rule is stated more strongly in Taul v. Wright, 45 Tex. 388, which is approved in House v. Robertson, 89 Tex. 681, 36 S. W. 251. In the former case the court said: "And if the judgment is valid, though it may be impossible to determine the precise limit at which mere inadequacy of price alone will authorize the setting aside a judicial sale, still it cannot be denied that there may be cases in which the price paid is so utterly insignificant and shockingly disproportionate to the value of the property that a court of equity cannot regard it as, in conscience, any consideration whatever, and the mere fact of attempting to hold property so purchased will be held conclusive evidence of fraud. Certainly, when there is an enormous inadequacy of price at a sheriff's sale, if there are but slight irregularities or other circumstances attending calculated to prevent the property from bringing something like its reasonable value, it is regarded as unconscientious in the purchaser to hold the property so purchased, and his deed will be canceled." In the cited case of House v. Robertson the land was sold at $25, and was shown to be worth $800, and the court said: "It needs no argument to show that such a consideration for this property was enormously inadequate, and, while not sufficient of itself, perhaps, to authorize the court to set the sale aside, when taken in connection with the irregularities committed by the officers in issuing and executing the process, it must be held sufficiently inadequate to call upon a court of equity to interfere and protect the rights of the plaintiffs herein."

Not only did the plaintiff in the justice's court suit make the affidavit for citation by publication, but the manager and publisher of the San Antonio Daily Light swore to the publication of the citation before Hambleton, as notary public, who at that time was administrator of the Barnard estate, and the cause of action was transferred to appellant, who was also connected with the Light. No transfer of that cause of action or judgment appeared on the docket of the justice's court. Appellant did not testify at the trial, and his deeds to Mrs. Wilkens, Mrs. Stevens, and Edwin Routledge were acknowledged before Walling, as notary public. Not only were there the suspicious circumstances herein narrated, tending to show fraud, in evidence, but it appeared also that the lots were sold in bulk, in absolute defiance of the statute (article 3753, R. S. 1911; Sayles Stats. 2362), which requires that lots in any town or city shall be offered for sale separately; and it...