Y. Baker and others v. Lem. G. Clepper, 26 Tex. 629

Moose, J. The manner in which appellants presented their exceptions to appellee’s answer, if it was objectionable, fully justified the court below in overruling them. The exceptions were not .presented in the due order of pleading. They were intermingled' in the replication with averments and allegations of facts, so that it would have been very difficult, if not impossible, for the court to have acted upon the one without reference to the other.

The replication, indeed, seems rather to import that, in view of the fiicts it alleges, appellee had no sufficient defence than as questioning its sufficiency when tested by the averments in the answer. If the exceptions, however, had been properly taken, there appears. to be no reason why the court should have held otherwise than as-it did. The numerous and complicated issues that were raised by the pleadings were fully and fairly submitted to the jury. And as there was evidence to support their verdict, it must be held to be conclusive.

The appellees insist that the land was in the hands of the receiver at the date of the sheriff’s levy, and therefore not subject to sale under execution; and, also, that the sale that had been made of it by the receiver was illegal and void, because the order under which the receiver acted did not include the land. These positions are contradictory, and one or the other of them must be erroneous..

The record of the case in which the receiver was appointed conclusively shows that he had no authority to take the land into, possession, or to sell it; and for this reason the court in that case, upon the application of appellant, set aside the sale made by the receiver. And we think the court correctly held, that its action in that case on this question was conclusive upon the parties in this suit; and that appellee could not therefore hold or claim the land under or by virtue of his purchase of it from the receiver.

But as the land was not subject to sale by the receiver, ancE he had properly no connection- with or authority over it, it' remained, notwithstanding, his action, subject to levy and sale in satisfaction of appellant’s debts. Nor could the fact that appellee had purchased and claimed it under the illegal sale by the receiver deprive him of the privilege, in common with all other citizens,, of purchasing it, if properly sold under a judgment and execution.

The fact of the previous sale by the receiver no doubt was calculated to embarrass its sale under the execution; and as the-receiver’s sale had not then been pronounced illegal by the court, appellee had an advantage over other bidders; but the verdict of the jury under the charge forbids us from concluding that this was occasioned by any wrongful or fraudulent act on his part.

On the other hand, the testimony conclusively shows that if any injury has resulted to appellant by the previous illegal sale of the land by the receiver, it was brought about by his own act. in pointing; it out and causing it to be sold by him. The question with reference .to the excess of the levy, and the gross inadequacy of the price for which" the land was sold, was properly submitted to the jury. In the case of Allen V.

Stephanes, 18 Tex., 658, it is said: “The rule laid down in the charge of the court, and as it is generally expressed, is, that inadequacy of price at a sale made under process of law is not sufficient without additional circumstances to invalidate the sale.” (11 Johns., 566; 6 Watts, 140; 3 Yeates, 405.) The change of the court was as favorable to appellant as, under the authority of this case, he could have asked it.

The jury were properly instructed, nevertheless, that they should, in determining whether the levy was excessive, and the price at which the land was sold inadequate, consider what incumbrances, if any, there were upon it, and the embarrassments and suspicions that had been thrown around the title by appellant. Although the sale was for a mere nominal consideration in comparison with the value of the land sold, we cannot say that the finding of the jury in this respect is not strictly correct.

The testimony by no means leaves it free from doubt whether the land is not subject to incumbrances of a greater amount than its value. It has been repeatedly decided by this court that the title of the mortgagor of real estate could be sold under execution. (Wright v. Henderson, 12 Tex., 43.) The effect of a mortgage to secure the purchase money, executed simultaneously with the deed to the vendee, is, that the legal title remains with the mortgagee or vendor of the land. (Dunlap v. Wright, 11 Tex., 597; Ballard v.

Anderson, 18 Tex., 377.) But we cannot see that this in any manner prevents the interest of the mortgagor from being levied upon and sold. He has the same interest in the land1 as a purchaser who has a bond for title upon the payment of the purchase money. It is generally admitted, we believe, that the interest of such a party may, with us, be sold under execution. The evidence does not authorize the conclusion that appellee was ■cognizant, previous to his purchase of it, that the land had not been levied upon and regularly advertised twenty days prior to its sale, if such was the fact.

The effort of appellant to show that the execution was levied upon the. land at appellee’s instance entirely failed. Under these circumstances, if there had been neither a levy or advertisement, it has been held that it would not affect his title. The recitals of the sheriff’s return upon the execution, although to be taken as prima facie correct, were not conclusive. The return also recited that legal notice had been given of the sale; there was, therefore, a discrepancy in the recitals. The sheriff also testified that he gave the usual notice.

Under these circumstances, we do not think that there is error in the conclusion that the sheriff did not violate his duty as a public officer. In Frazier v. Moore, 11 Tex., 755, the sheriff’s sale purported to be made on the 10th of November, 1845, whereas, the deed from the sheriff rvas dated November 3d, 1845; yet, it was held that the deed was properly admitted, the jury being at'liberty to infer a mistake in the date. The failure of the sheriff to make appellee a deed, and the fact that he did not pay the amount of his bid to the sheriff immediately, did not vitiate his right or title under his purchase.

He was not bound to pay the amount of his bid until a deed was executed to him. If he and the sheriff mutually consented to delay the making of the title and payment of the money for a few days or weeks, appellee did not thereby forfeit his purchase. The sheriff, by the delay, may have made himself liable for the amount for which the land was sold, if appellee subsequently failed to comply.

But if the sheriff had the money when properly called upon for it by the plaintiff in execution, and 'the execution was returned by him in due time, we cannot perceive that any other person than the purchaser could complain at the delay in making the deed. That the tender of the amount of the execution to the sheriff subsequently to the sale of the land could not affect the title of the purchaser, is too manifest to require comment. In some cases it has been held, that the payment of the execution would not affect the title of a party who purchased in good faith and in ignorance of the previous payment.

But whether this is so or not, it is beyond doubt that the rights of the purchaser cannot be affected by any act of the defendant in execution subsequent to his purchase. It is not pretended that the judgment on which the execution issued was of that class in satisfaction of which appellant was entitled to the benefit of the appraisement law; the failure, therefore, of the clerk to endorse upon the execution, that it should be collected by the sale of property without appraisement, did not injuriously affect him, and certainly can in no way affect a purchaser at a sale made under it.

There appearing to be no error in the judgment it is affirmed. Judgment affirmed.