Pearson v. Flanagan

• Decision Date: 09 December 1879
• Citation: 52 Tex. 266
• Parties: PLEASANT H. PEARSON v. JAMES W. FLANAGAN.
• Court: Texas Supreme Court

52 Tex. 266

PLEASANT H. PEARSON

v.JAMES W. FLANAGAN.

Supreme Court of Texas.

Dec. 9, 1879.

APPEAL from Rusk. Tried below before the Hon. A. J. Booty.

On the 23d of January, 1877, appellee, James W. Flanagan, brought suit in the District Court of Rusk county against the appellant, Pleasant H. Pearson, in trespass to try title for the Ezekiel Norris survey of six hundred and forty acres of land in Rusk county, and, in addition, petitioned the court to cancel a deed to appellant for some land from the sheriff of Rusk county for fraud and inadequacy of price.

On the 20th of January, 1879, appellee filed an amended original petition, alleging, in substance, that appellant owned and was in possession of six hundred and forty acres of land in Rusk county known as the Ezekiel Norris survey, giving the boundaries; that on the 1st of November, 1876, appellant entered upon and ejected him from said land, and had kept him dispossessed; and that the annual value of the rent was $300. He prayed for judgment and possession. He also averred that appellant claimed said land under a sheriff's deed dated 7th of March, 1871, and sale under execution issued by the clerk of the District Court of Rusk county on 19th of January, 1871, on a judgment in favor of appellant against appellee for $1,000; that the fieri facias was levied on the land on the 20th of January, 1871, by the sheriff of Rusk county, who made no return on the fieri facias of the disposition he had made of the land; that after the sheriff had gone out of office S. R. Whitley, who purported to act as the sheriff, without anthority of the court, pasted on the fieri facias a paper on which he made return of the sale, giving no date to the paper; that appellant caused the fieri facias to be levied on said land, worth at the time $4,000, and at the same time levied on the following lots and tracts of land, viz.: A lot in Henderson, number 56, block 28, worth at the time $1,000; a tract of land in Henderson, twelve and seven-eighths acres, worth $1,000; and a tract of land described as the Loller survey, worth at the time $500. That the sheriff sold all the lands in a mass, and conveyed them in the same manner to appellant for the sum of $77.60; that this was done under the fraudulent promptings of appellant; that the gross inadequacy of the price for which the lands sold and the fraudulent and irregular manner of sale avoid the sale in law; that said appellant, to carry out his plan to obtain appellee's land without adequate consideration, caused said fieri facias to be levied without calling on appellee or his agent, Webster Flanagan, who was at the time residing in Rusk county, but, taking advantage of his continued and necessary absence at Washington, D. C., as a Senator in Congress, caused said fieri facias to be levied on said lands, and had the same sold, when at the same time it was well known to said appellant and said sheriff that appellee had in his possession in Rusk county, where he resided at the time, visible and perfectly accessible to levy by said sheriff, a large amount of personal property,--38 bales cotton, of the value at the time of $3,000, and 200,000 feet of sawed lumber, of the value at the time of $3,000, besides wild lands in Rusk county of the value of $30,000; that while said sheriff had said fieri facias for execution, and before his levy on the said lands, he was distinctly informed that appellee had the said personal property, and said sheriff declined to levy on the same, but levied on the property of Webster Flanagan, who was the surety of appellee in said judgment of Pearson v. J. W. Flanagan, and forced Webster Flanagan to enjoin the sale thereof; that appellant, the more effectually to carry out his fraudulent intent to appropriate the lands of appellee, pointed out and caused said sheriff to disregard the law and pass over said personal property and wild lands of appellee and levy on the said Norris land, which was improved land, and this was all done by said appellant to obtain appellee's lands for a nominal price; that the said sum of $77.60 bid by said appellant for said land was entered as a credit on said judgment; that he paid no money on said bid at said sale; that appellee brings the said $77.60 so bid by appellant for said land into court to be refunded to said appellant on the cancellation of said sheriff's deed to said appellant for said lands; that on the 6th of January, 1875, appellee fully paid the said judgment of said appellant against appellee, on which said fieri facias issued, under which said lands were sold, and then and there offered to pay back to said appellant the said $77.60 so bid and credited on said judgment, with the interest thereon, which offer was refused by said appellant.

The petition then set out appellee's title, viz.: Deed from Ezekiel Norris dated 2d of February, 1849, to Allen Norris, which was duly acknowledged for record and recorded on the 25th of May, 1849, by James McWilliams, clerk of the County Court of Rusk county; that Allen Norris, under said deed, took possession of said land, and held actual, peaceable, continuous, and adverse possession of the same until the 1st of January, 1871; that on the 8th day of November, 1870, Allen Norris and his wife sold and conveyed said land to appellee, and that said deed was on that day acknowledged for record and recorded in the county clerk's office of Rusk county on the 16th of May, 1874. The petition then sets out the field-notes of survey of said land, made for Ezekiel Norris by virtue of his own headright certificate for six hundred and forty acres of land, issued by the board of land commissioners of Rusk county; survey made August 21, 1847.

January 21, 1879, appellee filed trial amendment, and amended his amended original petition, filed January 20, 1879, by tendering in open court to appellant $77.60, and the interest thereon from the 7th of March, 1871, the date of appellant's purchase of the land sued for, &c. Martin Casey intervened and claimed one hundred acres of the land, for which he obtained judgment. His interest was not involved in the appeal.

Mrs. E. H. Flanagan also intervened, claiming all the land. She was defeated, and her interest was not involved in the appeal.

March 14, 1877, appellant answered by general demurrer, and specially, that more than five years had elapsed from the date of sheriff's sale under which he claimed to the bringing of appellee's suit to set aside that sale, which lapse of time deprived appellee of his right to set the sale aside. He also pleaded not guilty, a general denial, and the statute of limitations of three years under color of title and under title, and five years under recorded deed, &c.; that the sheriff's sale was honest and fair, and that the land was sold in lots of not more than forty acres at a time.

January 20, 1879, appellant filed second supplemental answer, in substance, that there was no fraud in the sheriff's sale under which he claimed the land; that there was no title of record to plaintiff; that the character of appellee for litigation was notorious, and also that his character for dealing in land with doubtful title was notorious, and for these reasons the land sold for an inadequate price.

Judgment was rendered in favor of James W. Flanagan, and against his wife and Pearson.

It was agreed by the parties that in the years 1870, 1871, and 1872 A. F. Lacy was deputy sheriff of Rusk county; that he would testify, if present, that as deputy sheriff “he had an execution in favor of Pearson against James W. Flanagan; that before the sale of the land sued for he called on J. W. Flanagan for a levy to satisfy said execution, which issued on the judgment under which the land was sold, and he declined to give any, or to point out any property to levy said execution on, stating that he had paid the same by his bankruptcy; that said execution was for about $1,000.”

James W. Flanagan went into bankruptcy in 1868. He claimed that the Pearson judgment had been discharged by his bankruptcy.

When the levy was made J. W. Flanagan was Senator at Washington, D. C., and Webster Flanagan was Senator at Austin, Texas.

N. G. Bagley, Pearson's attorney, in a month or two after he purchased the land for Pearson, made an agreement with one Satiwhite to go into possession of the land for the year 1871.

Witness McAfee saw Satiwhite in possession of the land, who told witness that he held the land for N. G. Bagley. He left there in the fall of 1871, and one Ames went into possession as tenant to N. G. Bagley, and remained there for five years as such tenant.

Witness Mayers, as agent for plaintiff, leased the land to Ames on December 20, 1874, and leased the same land to Scott Bryant for 1876, who was dispossessed, at the suit of defendant before a justice of the peace, in the winter.

The court, among other things, charged: “It was the duty of said sheriff to have levied said execution, first, on the personal property of the plaintiff, if any he had, and the said sheriff had knowledge of the same, or by reasonable and ordinary inquiry and diligence might have learned of the existence of the same.”

And, further, the charge directs: “But you are further instructed, that if the said land sold at said sale for a price which was shockingly and unconscientiously less than its value, that is, if it sold for a price so far beneath its value that no man in his senses would have exchanged it for such a price; and if you further believe from the evidence that the plaintiff had in Rusk county personal property and improved lands, either or both, sufficient to have satisfied said execution, and the officer levying said writ had knowledge that he had the same, or by ordinary inquiry might have learned of his having the same, then his failure to levy said execution upon and sell said personal property and unimproved real estate, either or both together, with the fact (if such be the fact, of...