John H. and William H. Pope, administrators, v. J. W. Davenport, 52 Tex. 206

Bonner, Associate Justice. In this case there are twenty-nine errors assigned. We have given them a very patient and careful consideration. To present them all in detail, would extend this opinion to great length without corresponding benefit. Hence we discuss but the two upon which we consider the case virtually depends, and briefly announce our conclusions upon the most material of those remaining. Both parties claim under W. H. Dial as a common source of title.

It is contended by appellants, who were defendants below, that two of the links in plaintiff’s chain of title were defective; first, that derived under the execution sale by Sheriff Perry to the original plaintiff, James B. Scruggs; second, that derived under the bankrupt sale by W. G. Cain, assignee of Scruggs, to the present plaintiff, J. W. Davenport. I.

It is claimed by appellants that this execution sale was void by reason of an agreement between the sheriff, the defendant in execution, and the purchaser, that whatever might be the bid in exmess of the amount due on the execution, the same should be satisfied by payment of this last-named amount; and further, that the sale was void because the full amount of the bid was not paid and the sheriff’s deed was not delivered.

That such an agreement was made, is not denied; and that as between proper parties it would be such fraud, in law, as, without regard to the fraudulent intent in fact, would avoid-the sale, we have no doubt. It is not pretended that the excess between the amount due on the execution and that actually bid, being several hundred dollars, was ever in fact paid; the contest under this issue being as to an alleged payment in the draft of W. H.

Dial, the defendant in execution, for the sum of $304, the difference between the cash payment on the bid and the amount due on the execution Hone of those, however, who were interested at the time of the sale, are made parties to this suit or heard to complain. The plaintiffs in execution, Snediker and Cole, (and if they were not the true owners thereof, it does not appear to have been known to the bidders,) did not seek by motion or otherwise to set aside the sale, and, indeed, could not have done so, if, as found by the jury, they accepted the draft for $304 in satisfaction of the execution.

The defendant in execution, W. H. Dial, to whom ordinarily under the statute (Paschal’s Dig., art. 3777) the excess over the amount of the execution should be paid, is estopped, as he was a party to the transaction; and J. M. Collins, who bought from Dial subject to the judgment lien, is not before the court and does not complain. That he, by proper proceedings, could have set aside the sale, or, if he acquiesced it, by due notice to the sheriff of his title, could have recovered the excess of the bid over the amount due on the execution, would seem clear.

The sale was voidable only and not absolutely void, and unless set aside by a proper party would be binding. The failure of Collins to assert his rights would not authorize a stranger to the proceedings to assert them for him. (Hicks v. Perry, 7 Mo., 346; Freem. on Ex., sec. 305.) The title in Collins was subordinate to the judgment lien of Snediker and Cole, and was not such an independent, superior outstanding title as would, under the circumstances, avail the defendants in this suit.

We are of opinion that appellants, who claim title by a subsequent execution sale under this same judgment, have not such interest as that they can, in any event, complain of the failure to pay the excess of the bid over the amount due on the execution, and could complain only in the event that there was a failure to pay the $304 difference between the cash payment and the remainder due on the execution; that is, that they could complain in the event only that the prior execution was not satisfied, and hence that there was authority to issue the subsequent execution under which they claim.

The testimony was quite conflicting as to whether the draft for $304 wtis received in full satisfaction of the remainder due on the execution, and as to whether, in fact, the sheriff’s deed was delivered. We are of opinion that the legal propositions arising from the evidence upon these issues were substantially submitted in the charge of the court, and that there was not such a preponderance of testimony for appellants as would authorize us to set aside the verdict of the jury in favor of appellee.

We do not think that the judgment should be reversed for the alleged error that witness Perry was not permitted to testily that Snediker, one of the plaintiffs in execution, stated to him that he had not agreed to take the draft of Dial in payment of the judgment.

It does not affirmatively appear that this was a part of the same conversation testified to by witnesses McKay and Dial; and, besides, witness Perry swore positively that he met the parties in the settlement at which the draft was taken in his capacity as sheriff and not as the agent of Snediker, and that he had no authority to take anything but money in payment of the execution. II. It is contended by appellants that the sale by W. G. Cain, assignee in bankruptcy, to plaintiff Davenport is a nullity.

Under this, appellants submit the following two leading propositions: “ Where the title of property, real or personal, is in dispute, at the date of the bankruptcy, between the bankrupt and a third person, it does not pass into the hands of the assignee, nor does he acquire title thereto under the deed of assignment.

Only the title to such property as the bankrupt has in possession, and is surrendered by him,-passes under the assignment, and the register has no authority to assign the title to other property. “ Where the title to property is in dispute, a sale thereof can only be ordered by the court on petition of the assignee, after notice to the adverse claimant, as the judge shall direct; and then the titles of both claimants pass under the sale, and the funds remain in the hands of the assignee subject to the order of the court on final adjustment of the conflicting claims.” By sections 5044 and 5047 of the Bevised Statutes of the United States, by virtue of the adjudication in bankruptcy, the appointment of an assignee and the conveyance to him of all the estate, real and personal, of the bankrupt vests in the assignee, including, among other designations of property of the bankrupt, the following: “All his rights of action for property or estate, real or personal, and for any cause of action which he had against any person, arising from contract or from the unlawful taking or detention or injury to the property of the bankrupt.” This is sufficiently comprehensive to pass a right of action to land in dispute and held in adverse possession. (Botes to Bump on Bank., 9th ed., title What property vests in the assignee, and authorities cited.) It has been decided that the assignment vests the property in the assignee, although it was not placed in the

schedule of the bankrupt. (Bump on Bank., 9th ed., 484, note, citing Holbrook v. Coney, 25 Ill., 543; Burton’s Administrator v. Lockert’s Executors, 9 Ark., 411; Jewett v. Preston, 27 Me., 400.) It has been held by this court that the mere fact that land was in the adverse possession of another would not invalidate a sale otherwise good. (Carder v. McDermett, 12 Tex., 546; Austin v. Dungan, 46 Tex., 246.) Under

section 5046 of the Bevised Statutes of the United States, the assignee has the same right, title, power, and authority to sell; manage, and dispose of the property and estate as the bankrupt might or could have had if no assignment had been made. (Bump on Bank., 9th ed., 167.) It is believed that, under the bankrupt act and in practice, there is a distinction as to the effect of a sale by the assignee, when made of the bankrupt’s interest only, or a sale subject to incumbrance, and a sale of both the interest of the bankrupt and an adverse claimant, or a sale free of incumbrance.

In the former, the adverse claimant need not be made a party, and his interest is not affected by the sale, the purchaser simply taking such title as the bankrupt had; in the latter, the adverse claimant must be made a party, and the purchaser takes the title of both parties, and the proceeds are held in place of the propert}7 sold.

To hold that a sale by an assignee would be void even as to the interest of the bankrupt, unless the adverse claimant was made a party to the proceedings of sale, would, we think, not be sound on principle, would unnecessarily restrict the powers of the assignee given by the statute, and would impair the validity of many titles to land which passed through the ■assignee, where, from want of knowledge of the adverse claimants, or other causes, they were not notified.

If, by reason of this want of notice to adverse claimants, the sale was not made to the best advantage of the estate, the creditors and others directly interested might object; but it is not believed that the adverse claimant whose rights could not be affected by the sale can complain. It could not be material to him whether the adverse interest was owned by the assignee or by some one else. (Ray v. Norseworthy, 23 Wall., 128.) Concede that an adverse claimant is required to be made a party to an order of sale under

section 5063 of the Revised Statutes of the United States, in order to divest his title, and that this order can be made only by the District Court in session, yet we are not prepared to say when the interest of the bankrupt’s estate only is sold by order of the register, and the sale approved by him, the application not having been contested, that the sale would be a nullity.

So far as we are advised, it was the practice to order sales as was done in this case, and the bankrupt act seems to contemplate that registers have power to make all uncontested orders and directions, in the administration business of the court, which by the act are not required to be made, done, or performed by the District Court. (IT. S. Rev. Stats., sec. 4998; Gen.

Orders in Bankruptcy, Ho. 5; Bump on Bankruptcy, 9th ed., 74.) If, however, the assignee had'the general authority to sell at public auction the interest of the bankrupt, it is not believed that such sale would be void because he may have obtained an order of the register to make the same. A mistaken recital of the source of power would not invalidate the act if the power in fact existed. (Hough v. Hill, 47 Tex., 153.) As the plaintiff introduced a part only of the proceedings in the bankruptcy of James B.

Scruggs, the defendants, by a familiar rule of evidence, had the right to introduce the remainder; and if, under the view wre take of the question, the excluded part had not been immaterial as affecting the rights of the defendants, the action of the court in excluding it would have been error sufficient to reverse the judgment. The above disposes of the most material and controling questions in the case, and virtually of such errors assigned as arise out of the same. That the witness II.

McKay was permitted to testify generally as to his knowledge of the matters in issue, without special interrogatories to each point, was, we think, under the circumstances, not error. As a rule of practice it would prevent the objection so often raised, that a question is leading. If the witness should attempt to give illegal testimony, this could be prevented by objection; or if given, it could be excluded on motion, as is often done.

Keither do we think that there was error in not permitting counsel for defendants to read from the statement of facts the testimony of the witnesses McKay and Dial, taken in another cause, as the basis for interrogatories to them as to what was their evidence in that cause.

It would not be proper to read such statement to the jury as a basis to propound interrogatories to impeach the witness, and if offered for any other purpose would be but hearsay. [Opinion delivered December 2, 1879.] Such practice as contended for would have a tendency to mislead the jury, and it is not necessary to the ends of justice that it be resorted to, as the party has the right, without» producing the -written evidence, to ask the impeaching questions, and may use it as a private memorandum for this purpose.

It was in the discretion of the court to permit the plaintiff to read the execution in evidence after the argument of counsel had commenced and before the same had closed, and this is often permitted in practice. This discretion would not be revised unless the defendants had been prejudiced thereby, as when, in consequence of the failure to introduce the evidence at the proper time, they were not prepared with rebutting or explanatory testimony, or were not allowed to comment in argument upon the evidence after it was introduced.

The bill of exceptions in the case, however, does not show that the defendants were, from these or other reasons, prejudiced in fact by the ruling of the court. To have entitled the defendants to exemption from pay for “ use and occupation ” under

article 5306 of Paschal’s Digest, they must have proven, both that they paid the taxes on the land, and that the plaintiff' failed to pay the same. They proved the latter, but the evidence shows that the defendants themselves failed to pay the taxes for two years after their occupancy. There being no apparent error sufficient to reverse the judgment, the same is affirmed. Affirmed.