Rippetoe v. Dwyer

• Decision Date: 01 January 1878
• Citation: 49 Tex. 498
• Parties: A. H. RIPPETOE ET AL. v. THOMAS DWYER.
• Court: Texas Supreme Court

49 Tex. 498

A. H. RIPPETOE ET AL.

v.THOMAS DWYER.

Supreme Court of Texas.

1878.

APPEAL from Washington. Tried below before the Hon. I. B. McFarland.

The facts sufficiently appear in the opinion.

Giddings & Morris, for appellant, cited and discussed Willard's Eq., 106, 119, 454, 251; Clowes v. Dickenson, 5 Johns. Ch., 235;Gill v. Lyon, 1 Johns. Ch., 447; 2 Story's Eq., sec. 1233; Stevens v. Cooper, 1 Johns. Ch., 425;Webb v. Maxan, 11 Tex., 678; 1 Story's Eq., 310, 405, 406; Giddings v. Steele, 28 Tex., 734.

Sayles & Bassett, for appellee.

I. As to the priorities between different purchasers of property chargeable with a lien, and as to which of the lands is to be first subjected to the charge, there is contrariety in the decisions.

“The general rule now acted upon by courts of equity, is, that where there is a lien upon different parcels of land for the payment of the same debt, and some of those lands still belong to the same person, who in equity and justice owes, or ought to pay, the debt, and other parcels of the land have been transferred by him to third persons, his part of the land, as between himself and them, shall be primarily charged with the debt. This would seem highly reasonable as to the original incumbrancer. But it has been further held, that if he has sold or transferred different parcels of the land at different times to different persons as incumbrancers or purchasers, then, as between themselves, they are to be charged in the reverse order of the time of the transfers to them,--that is to say, the parcels last sold are to be first charged to their full value, and so backwards until the debt is fully paid; for it is said that the last purchasers are to take only as far as they may without disturbing the rights of the prior incumbrancers or purchasers, who, being prior in point of time, have a superiority of right. But there seems great reason to doubt whether this last position is maintainable upon principle; for, as between the subsequent purchasers or incumbrancers, each trusting to his own security upon the separate estate mortgaged to him, it is difficult to perceive that either has, in consequence thereof, any superiority of right or equity over the others. On the contrary, there seems strong ground to contend that the original incumbrance or lien ought to be borne ratably between them according to the relative values of the estates. And so the doctrine has been asserted in the ancient as well as in the modern English cases on the subject.” (2 Story's Eq. Jur., 1233 a.)

The strong inclination of Story to the latter rule appears from another passage: “On the other hand, cases may easily be stated where apportionment of a common charge, or, more properly speaking, where contribution towards a common charge, seems indispensable for the purpose of justice; and accordingly it has been declared by the common law in the nature of an apportionment towards the discharge of a common burden. Thus, if a man owning several acres of land is bound in a judgment, or statute, or recognizance, operating as a lien on the land, and afterwards he aliens one acre to A, another to B, and another to C, &c.; then if one alienee is compelled, in order to save his land, to pay the judgment, statute, or recognizance, he will be entitled to contribution from the other alienees.” (1 Story's Eq. Jur., sec. 477.)

II. The rule that the land remaining in the hands of the original debtor is first to be sold to satisfy a lien which is also a charge upon other lands which have been sold, was recognized by the parties to the suits above referred to for the foreclosure of the vendor's lien. The judgments of foreclosure were rendered in October, 1870, and did not, in their terms, relate to an antecedent period. The executions directed the sale of the interest possessed by the defendants Pressley and Perryman on the day the judgments were rendered, i. e., the 17th and 21st of October, 1870, and the sheriff's deed purported to convey only such interest. On the day that the judgment was rendered, the defendants in those judgments had no interest in the land in controversy. The execution did not authorize the sale of this land, and the sheriff's deed does not undertake to convey it.

So far as this record shows, the only tracts sold by Pressley out of lots 43 and 90, subject to the vendor's lien, were the lot in controversy and the lot purchased by Rippetoe, and by him sold to Pflughardt. All of lot number 90, and the balance of lot 43, were at the date of the judgment unsold, so far as this record shows; and the sale under execution of all the right, title, and interest of defendants Pressley and Perryman in lots 43 and 90, on the day the judgments were rendered, would operate to convey such unsold portions, which in law and equity were first liable for the satisfaction of these judgments. But it certainly would not pass title to portions which had been previously sold by Pressley.

It was competent for the holders of the notes, who were plaintiffs in these judgments, to abandon their lien altogether. (Murphy v. Johnson, 17 Tex., 216;Gentry v. Lockett, 37 Tex., 503;Cook v. Love, 33 Tex., 487;Toland v. Swearengen, 39 Tex., 447.) So they could have abandoned it in part, and limited the foreclosure to such property as remained in Pressley when the judgment was taken; and whether this was done by accident or design, the purchaser under such execution would take no higher right.

III. The title under which appellant holds was fraudulent.

The circumstances relied upon to establish fraud which vitiated the sheriff's sale are--

1. The debt upon which the judgments were rendered had been discharged; the control of the suit had passed by agreement to the attorney of the defendant; and there were no bona-fide parties litigant.

2. The evidence shows an arrangement by which judicial proceedings were used for a speculative purpose.

The first purchase of the lien notes seems to have been made by Perryman and Pflughardt and their attorney, but before the sale is made all the money so advanced by Perryman and Pflughardt is refunded to them, and the defendant Rippetoe holds the title acquired at the sheriff's sale, on account of himself and their attorney.

3. The property did not bring one-fortieth of its value. In a short time after the sale, defendant realized, in gold, by his “compromises,” over twenty-six times the amount of his bid in currency. (Allen v. Stephanes, 18 Tex., 658;Chamblee v. Tarbox, 27 Tex., 145.) In the case at bar, Wilkins, who had bought from Rippetoe, and to whom the tenant in possession would look for reimbursement, says “that he had a conversation with Dr. Rippetoe about the sale, and he thought Rippetoe was bound to protect him, * * * * * * and in consequence of what Rippetoe said, did not attend the sale.”

The impression of Wilkins, that the sale was made in the interest of the purchasers under Pressley, might have been the general impression and the cause of the notably small price for which the property was sold.

Another circumstance leading to the same conclusion, was the transfer of the notes to one of the defendants, he assuming all costs, and the subsequent control of the case by his attorney, who took the judgment against his own client.

In Mackay v. Martin, 26 Tex., 57, it is said to be questionable whether a purchase by an attorney under his client's execution, over which he had control, would not be deemed, in itself, invalid in England; and the chief justice, delivering the opinion, quotes the observation of Lord Thurlow, cited by Chancellor Kent in Howell v. Baker, 4 Johns. Ch., 118,“that no attorney can be permitted to buy in things in a course of litigation, of which litigation he has the management. This, the...