"James B. Snowball brought this suit, as by bill in equity, to set aside a sheriff's sale under execution of real estate to the defendant, L. E. Moore, on account of attendant irregularities which it was alleged had conduced to sacrifice the property for a grossly inadequate price, the petition expressly affirming the title, both legal and equitable, to be in the defendant, L. E. Moore, the purchaser at such sheriff's sale, but seeking, as a matter of affirmative equitable relief, to regain such title on account of the equity mentioned, as would be by reconveyance in equity. The city of Houston and James Snowball, the plaintiff's father, were joined as defendants, but the former disclaimed, judgment being entered as to it accordingly, and the latter, by a cross-petition, set up as to himself the same allegations made by the plaintiff, and became in effect a coplaintiff. The defendant, L. E. Moore, answered, so far as necessary to state, by general denial, by plea in bar of former recovery as res adjudicata, by plea of improvements in good faith, and by cross-plea for recovery. The plaintiff and cross-plaintiff replied by first supplemental petition, denying generally the averments of the answer, and specially pleading claim for rents from the premises, and that, in so far as the alleged former suit rested upon the cross-action therein, said plaintiffs had neither been cited nor appeared thereto, and that no guardian ad litem had been appointed therein for the plaintiff James B. Snowball, who was then a minor. The defendant, L. E. Moore, by first supplemental answer, put in a general denial to said supplemental petition. The case was tried with a jury, and resulted in a verdict and judgment for said plaintiffs on January 17, 1903, awarding to them the equitable relief sought in respect to their alleged interest in the land, such interest being a life interest of a third in the whole to the cross-plaintiff, James Snowball, and a third interest in fee simple to the plaintiff, James B. Snowball, subject to said life estate, but upon condition of said plaintiff's returning $1,139.46 towards the purchase price paid by defendant, L. E. Moore, he recovering at the same time $424 for his share of the rents, and upon condition of said cross-plaintiff's returning $619.73 towards the purchase price paid by defendant, L. E. Moore, he at the same time recovering $1,272 as his share of the rents. The judgment offset the rents against the return payments, and directed, as to the plaintiff, that he pay the balance remaining, with 6 per cent. per annum interest thereon from date of judgment into the registry of the court, within 10 days after filing of the mandate of the appellate court, if an appeal was taken; and, as to the cross-plaintiff, that he recover the balance remaining in his favor from the defendant, L. E. Moore, with interest at 6 per cent. per annum from the date of the judgment. The verdict found that the defendant, L. E. Moore, was the owner in fee simple of the remaining undivided interest of said real estate, and the decree adjudged that partition be made in the usual manner, commissioners being appointed therefor, but to be so made that the defendant's improvements should go to her, if it could be done without prejudice to the interests of said plaintiffs.
"The material facts disclosed by the record are these: The property in controversy was the separate property of Mary A. L. Snowball, deceased, and at her death the fee-simple title to same descended to and vested in her three children, Daisy Dean McKinney, Lilian E. Fisher, and the plaintiff, James B. Snowball. The cross-plaintiff, James Snowball, is the surviving husband of said Mary Snowball, and upon her death became entitled as such survivor to an estate for life in one-third of said property. In 1898, after the death of Mrs. Snowball, the city of Houston brought suit against her heirs above named to recover taxes due said city upon said property and to foreclose the tax lien for same. On May 12, 1898, a judgment was rendered in said suit in favor of the plaintiff for the sum of $1,572.30, and foreclosing the tax lien. In accordance with this judgment an order of sale was issued, and in pursuance thereof the property was sold on the first Tuesday in August, 1898, at public outcry before the courthouse door of Harris county. At this sale the appellant, L. E. Moore, became the purchaser for the sum of $1,660, which amount she paid to the sheriff, and received his deed for the property. This deed is in the usual and proper form, and was duly recorded in the deed records of Harris county. Subsequent to this purchase at sheriff's sale the appellant procured from Mrs. McKinney and Mrs. Fisher a conveyance of
their interest in the property. Notices of the sheriff's sale were posted as required by the statute, but no notice of same was served upon either of the appellees, both of whom lived in Harris county at that time. The property consisted of various lots and parcels of land, but the improvements thereon and the purposes for which the property was used were such as to prevent its being sold advantageously by separate lots. Notwithstanding this fact, it was sold in separate parcels according to artificial lot lines. At the time of this sale the fair market value of the property was $17,000. The homestead of appellee James Snowball had been established upon a portion of this property for 30 years, and he and the appellee James B. Snowball, who is a minor, were occupying said homestead at the time of the sheriff's sale, and continued to occupy same until dispossessed by the sheriff at the instance of the appellant. Neither of the appellees had any knowledge or notice of said sale until some time after it had occurred. Had they known of the sale, they would have endeavored to secure the money to pay off the lien, and, failing to do this, they would have demanded a publication of notice of the sale in a newspaper, and may have thereby obtained more bidders at such sale, and would have required the property to have been subdivided and sold with reference to the improvements, and not by artificial lot lines. On the 24th day of August, 1898, appellee James Snowball for himself, and as next friend of the minor appellee, brought a suit in the district court of Harris county against L. E. Moore, the appellant herein, the city of Houston, and R. R. Anderson, sheriff of Harris county, to recover the indentical property which is the subject-matter of this suit. The petition in that suit, in addition to the usual allegations of a petition in trespass to try title, alleged that the judgment obtained by the city in the tax suit was void because no citation had been served upon the defendants in said suit. It was further alleged that said judgment and the order of sale issued thereon were void for the reason that the judgment and order of sale directed that the property be sold in bulk for the whole amount of taxes adjudged to be due thereon, notwithstanding a portion of said property was the homestead of plaintiffs, and could not therefore be lawfully sold to satisfy the taxes due upon the remainder of said property. It was further alleged that the tax judgment and the proceedings had thereunder constituted a cloud upon the plaintiff's title. The prayer of the petition was for the cancellation and annulment of said judgment and all proceedings thereunder, and for a perpetual injunction against any attempt to enforce same, for the recovery of the title and possession of the property, and for equity and general relief. To this petition the defendant, L. E. Moore, answered by general denial and plea of not guilty, and by plea in reconvention, in which she claimed title to the property in controversy and prayed that the same be adjudged to her. Upon the trial of this case judgment was rendered by the district court that the plaintiffs take nothing by their suit, that the defendant recover the title and possession of the property, and that all the right, title, and claim of plaintiffs in and to said property be devested out of them, and vested in the defendant, L. E. Moore. This judgment was rendered on the 21st of November, 1898, and was never set aside or appealed from. In the suit in which this judgment was rendered neither the pleadings nor evidence raised the issue of the invalidity of the sheriff's sale under which the defendant claimed title to the property by reason of any irregularities in such sale, the only attack made upon the sale being incidental, and dependent upon the alleged nullity of the judgment and order of sale issued thereon. No service of notice of the cross-bill or plea in reconvention set up by defendant in that suit was had upon the plaintiffs, and no guardian ad litem was appointed to represent the minor plaintiff, James B. Snowball, in defense of such cross-bill, and no appearance or answer was filed therein, but the plaintiff James Snowball knew that said plea in reconvention had been filed in said suit.
"Upon the foregoing statement of the pleadings and evidence in the above styled and numbered cause pending in this court on appeal from the district court of Harris county, we respectfully certify for your decision the following question:
"Do the facts stated sustain the appellant's plea of res adjudicata?"
