Rio Delta Land Co. v. Johnson

Decision Date18 May 1978
Docket NumberNo. 1263,1263
PartiesRIO DELTA LAND COMPANY, Appellant, v. E. W. JOHNSON et al., Appellees.
CourtTexas Court of Appeals
OPINION

BISSETT, Justice.

This is a suit to set aside a sheriff's deed to a tract of land in Cameron County, Texas, hereinafter referred to as the "1,000 acres". Trial was to the court, a jury having been waived by all parties. Judgment was rendered on May 23, 1977, that Rio Delta Land Company, the plaintiff, take nothing by its suit against E. W. Johnson and the other defendants. Rio Delta has appealed.

The defendant John S. Caputa has filed a brief in this Court; the defendants E. W. Johnson and wife, Irene Johnson have not filed such a brief; the remaining defendants have given a "conditional notice of appeal", and have filed a brief wherein they contend that they are entitled to judgment against the defendant Caputa for breach of warranty only in the event that this Court reverses the judgment of the trial court. We affirm the judgment of the trial court.

On June 14, 1968, the District Court of Cameron County, Texas, in Cause No. 47,765-A, rendered judgment in favor of E. W. Johnson and Irene Johnson against Rio Delta for $15,200.00, plus interest and costs. Rio Delta appealed that judgment but did not post a supersedeas bond. The appeal was dismissed by this Court on December 31, 1968.

Pursuant to a writ of execution which was issued on July 26, 1968, the Sheriff of Cameron County levied upon Rio Delta's interest in the 1,000 acres on August 15, 1968. Notice of the pending sheriff's sale was published in a newspaper in Cameron County on August 15, 22, and 29, 1968. The Sheriff sold the land in question to the Johnsons on September 3, 1968; the land was sold for $15,900.00, of which $544.56 was paid in cash, and the balance was credited by the Johnsons on the judgment.

Rio Delta filed suit in the District Court of Cameron County on September 11, 1968 against Boynton Fleming, the Sheriff of Cameron County, E. W. Johnson and Irene Johnson. The suit was docketed as No. 49,051-B. Rio Delta alleged that it had "suffered damages in the sum of $2,500.00" as a result of the sheriff's sale to the Johnsons. Citations were never served on any of the defendants and none of them made an appearance. The suit was dismissed for want of prosecution on March 3, 1969.

The land was sold by the Johnsons to Caputa on September 13, 1968 for $18,200.00. Caputa created a subdivision out of the land in question, South Shores Subdivision, Unit # 1, on August 20, 1969. Caputa then sold lots in the subdivision to third parties.

On July 15, 1970, Rio Delta filed the suit against Caputa, et al, to set aside the sheriff's deed on the grounds: 1) the sheriff's sale was irregular because of lack of proper notice; 2) the land was sold at a grossly inadequate price; and 3) the sale was voidable because Caputa was charged with knowledge of the irregularities concerning the notice. Summary judgment in favor of the defendants was reversed by this Court on December 30, 1971, and the cause was remanded to the trial court for a trial on the merits. See Rio Delta Land Company v. Johnson, 475 S.W.2d 346 (Tex.Civ.App. Corpus Christi 1971, writ ref'd n. r. e.). The instant appeal is from the judgment which was rendered after such a trial.

It is conclusively established by the record that proper notice of the sheriff's sale as required by Rule 647, T.R.C.P., was not given by the sheriff. The sale, which was held on September 3, 1968, was held on a day which was less than twenty days from the date of the publication of the first notice of sale on August 15, 1968.

As a general rule, an irregularity in a sheriff's sale, standing alone, will not authorize the setting aside of an execution sale; however, when such irregularity is accompanied by a grossly inadequate purchase price, the additional circumstance will give rise to an action to invalidate the sale. Allen v. Stephanes, 18 Tex. 658 (1857); Rio Delta Land Company v. Johnson, supra, at page 348. The particular facts of each case will determine whether or not the price for which the property was sold was so grossly inadequate as to warrant the setting aside of the execution sale. House v. Robertson, 89 Tex. 681, 36 S.W. 251 (1896).

A concise statement of the general rule which controls this appeal appears in McKennon v. McGown, 11 S.W. 532, 533 (Tex.Sup.1889), as follows:

". . . The rule in this state upon the question of inadequacy of price is that mere inadequacy of consideration will not, of itself, warrant the setting aside of the sale; yet if, in addition thereto, there be the appearance of unfairness, or any circumstance, accident, or occurrence in relation to the sale of a character tending to cause such inadequate price, the sale will be set aside; and if the disproportion between the price paid and the real value at the time of the property is enormous, but slight circumstances will justify vacating the sale, and the greater such inadequacy of price the slighter need be the circumstances of fraud, accident, or mistake. . . ."

For an extensive collection of cases on the subject, see Prudential Corporation v. Bazaman, 512 S.W.2d 85, 89-91 (Tex.Civ.App. Corpus Christi 1974, no writ).

The trial court filed 94 findings of fact and 9 conclusions of law. Most of the findings and conclusions are challenged by Rio Delta. We discuss only those which control the disposition of this appeal.

Findings of Fact

The trial court, among other findings, found: the land in question was undeveloped and had no significant market value at the time of the sheriff's sale; the irregularities in the notice of sale did not affect the amount bid at the sheriff's sale; the price paid for the land at the sheriff's sale was not grossly inadequate; on or about September 6, 1968, the attorney who represented the Johnsons in their suit against Rio Delta advised the latter's attorney that the Johnsons were willing to convey the 1,000 acres to Rio Delta for the amount they paid pursuant to the sheriff's sale, plus expenses, but that such offer was rejected by Rio Delta's attorney; Rio Delta did not make actual tender of the sum of $544.46 until on or about November 5, 1976, a few days prior to the commencement of trial in this cause; the said tender was not timely; the tender of $544.56 was made only to the Johnsons and not to Caputa; Rio Delta has never tendered or offered to tender any sum of money to Caputa.

Conclusions of Law

In summary, the trial court concluded that Rio Delta should "take nothing in this suit" because it failed to prove that the land in question was sold at a grossly inadequate price, or that the irregularities as to notice of sale were calculated to or did affect the sale or the amount bid at the sale.

Rio Delta's points 1, 2, 3, 4, 6, 8, 11, 12, 14, 15 and 17 attack the findings and conclusions of law made and filed by the trial court. The aforesaid eleven points challenge fifty-eight separate findings of fact and nine separate conclusions of law. Specifically, point 1 complains of 6 findings and 1 conclusion; point 14 complains of 4 findings and 3 conclusions; point 15 complains of 3 findings and 3 conclusions; point 17 complains of 7 findings and 2 conclusions; and the remaining points complain, in varying numbers, of from 4 to 9 findings. None of the points contain separate subdivisions for each challenged finding, and the challenges are set apart by use of a semicolon only. All of the points go directly from a restatement of the point to the argument and authorities without a separate statement of the facts for each point. Quotations from the Statement of Facts are interwoven, argumentatively, in the argument and authorities. The same is true with respect to references to exhibits.

This Court, in Leal v. Aluminum Company of America, 443 S.W.2d 942, 945-946 (Tex.Civ.App. Corpus Christi 1969, no writ, speaking through Justice Nye, now Chief Justice, said:

"There must be a substantial compliance with the provisions of the briefing rules in order for a litigant to have his points of error considered...

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    ...determine with some degree of certainty the nature of the complaint raised by the point. Rio Delta Land Co. v. Johnson, 566 S.W.2d 710, 713 (Tex.Civ.App.--Corpus Christi 1978, writ ref'd n.r.e.); Tex.R.App.P. 74. The Bank clearly did raise its complaint that Illinois law, rather than Texas ......
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