Pleasant H. Pearson v. James W. Flanagan, 52 Tex. 266

Bonner, Associate Justice. This is a suit brought by appellee, James W. Flanagan, against appellant, Pleasant- H. Pearson, to recover the Ezekiel Norris six hundred and forty acres of land, and is also in the nature of an equitable proceeding on the part of James W. Flanagan, as defendant in execution, to set aside the execution sale of this land, at which Pearson, plaintiff in execution, was the purchaser.

Two of the most important questions presented by the pleadings of appellant-, Pearson, defendant below, (that of the statute of limitations and that of the laches on the part of appellee, Flanagan, to institute within the proper time proceedings to set aside the execution sale,) are not so presented under the rules of this court as to demand that we pass upon them. Although set up in the pleadings, and though there was testimony tending to prove these issues, the learned judge presiding below failed to'submit them in his charge. Appellant asked ten special charges, all of- which were refused.

Several of these were lengthy, a-nd some of them, in the attitude of the case as nowr before us, might not be insisted upon. One of these presented the above issues, which had been pretermitted in the general charge.

The failure to submit them was also, in general terms, made one of the eleven grounds in the original and two amended motions for a new trial. ■ The ninth and tenth errors assigned are, that “ the court erred in refusing the defendant a new trial for the reasons given in said motion,” and that'“the court erred in not giving the several special charges to the jury asked by the defendant.” Rule 24 of the Supreme Court provides: “ The assignment of errors must distinctly specify the grounds of error relied on, and a ground of error not distinctly specified, in reference to that which is shown in the record, or not specified at all, shall be.considered as waived, unless it be so fundamental as that thé court would act upon it without an assignment of errors, as mentioned in rule 23.” (Paschal’s Big., arts. 1591.) Rule 26 provides: “Assignments of error which are expressed only in such general terms, as, that the court erred in its rulings upon the pleadings, when there are more than one; or in its charge, when there are a number of charges; or the verdict is contrary to law, or to the charge of the court, and the like, without referring to and identifying the proceeding, will not be regarded by the court as a compliance with the statute, requiring the grounds to be distinctly specified, and will be considered as a waiver of errors, the same as if no assignment of errors had been attempted to be filed.” One of the principal objects sought to be accomplished by the rules, was, as far as practicable, to conform our mixed practice of law and equity to the simplicity of the common-law system of pleadings and procedure.

To effect this in the Supreme Court, it was intended that all alleged errors, (many of which are often necessarily taken without due consideration in the heat and haste of the trial below,) if not assigned with the requisite certainty, should be considered as waived, and that the parties should in their briefs be required to join issue upon alleged errors only which are properly assigned.

To this end, the appellant is required to so specifically assign his errors, and to make in connection with each error assigned a substantial statement from the record of the facts bearing upon the same, those against as well as those for him, with a reference to pages of the transcript where they may be found and of the authorities relied upon, that the appellee may be advised of the particular matter complained of, so that he can take issue upon the same; or, in the nature of a plea in confession and avoidance, may on his part admit and seek to avoid the issues thus tendered him, by submitting counter-issues, supported by a statement from the record, made with the same particularity as is required of the appellant. (Rule 25.) In this way the court is advised of the particular points in issue, and can readily pass upon them without the delay of an examination of the record, except when the parties disagree in their briefs as to its contents.

This examination, under the old system, often required more time than did the decision of the points involved, after they had been ascertained. The rules, in these particulars, were intended both to aid counsel in the proper presentation of the real questions'in issue, as they, having triecl the case below, are presumed to be best prepared to know and present them, and also to aid the court in the dispatch of business; and it is believed that, if understood and practiced, they will, in a great majority of cases, be of great advantage both to counsel and to the court.

They are not intended to relieve the court of the proper amount of labor which they should perform, but to so systematize and concentrate this labor that many more cases can be decided in the same length of time, and thus the crowded dockets of the court be relieved. The practical working of the system, when it has been fairly tested, gives evidence of this beneficial result.

If, however, as in this case, where several special charges were asked, or several special grounds in a motion for a new trial presented, and it is sought to reverse the judgment because the court refused to give the charges or grant the new trial, and the assignment groups these charges or grounds for a new trial together, and is so general that it does not particularly point out the one here relied upon for reversal and its application shown to the facts, then, if entertained, the opposing counsel and the court are required to consider them all, and thus the beneficial results intended by the rules will, in this particular, be defeated. (Fisk v.

Wilson, 15 Tex., 435.) Each error assigned should contain a distinct ground for the reversal of the judgment, with the specification of the reason why it should be reversed, and should be copied or substantially stated in the briefs. As it appears from both the pleadings and the evidence that appellant, Pearson, derived his possession and title to the laud in controversy from the appellee, Flanagan, by the sale under the execution against him, it was not error to overrule the objections of appellant to the validity of the title down to appellee.

The courts are open to every citizen for the lawful .prosecution or defense of suits which may be brought by or against him. If it should be his misfortune, from choice or from compulsion, to have been often before the court as a litigant, his general character in this regard should not, of itself, prejudice his right to have his property sold at a fair price, and we do not think that the court erred in excluding evidence of the litigious character of appellee.

It is assigned as error, that the court erred in that part of the charge in which the jury were instructed as follows: “ And 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 diligence and inquiry might have learned of the existence of the same.” * * * “ But you are further instructed, that if said laud 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 unimproved lands, or both, sufficient to have satisfied said execution, and the officer levying the 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 he the fact, of which you are the judges) that said laud sold for a price so shockingly and unconscientiously below its value that no man in his senses would have sold it for such price, those circumstances would be sufficient to set aside the sale.” Although the reasons growing out of the feudal system which gave a peculiar value to reál estate over that of personal property as entitling the owner to certain privileges and dignities, and although the restrictions which impeded its free alienation ceased -with the causes which gave them, birth, still both the voluntary and involuntary sale of real estate is more guarded and protected than that of personal property. (Freem. on Ex., sec. 279.) ■This policy, and that of encouraging a settled population and the cultivation of the soil as the true sources of individual and national wealth, gave rise to our homestead laws, and doubtless to our statute, which provides that if the defendant in execution shall fail or refuse to point out property, and the same is in the county, the levy shall be made first on personal or movable property, then on uncultivated lands, and lastly on improved lands. (Paschal’s Big., art. 8775.) Similar provisions in other statutes have, however, been held—-and we think correctly—to be merely directory; and though the failure to make the levy as designated might- be sufficient in a proper case, and on a proper application, to set aside the levy, or to make the sheriff liable in damages, yet the sale would not necessarily be void. (Freem. on Ex., sec. 279.) It is the policy of the law, for the benefit of both the debtor and creditor, that judicial sales, when fairly made, should, as ■a general rule, be upheld.

To hold otherwise would have a tendency to deter parties both from purchasing and from paying lair prices, and would lead to the sacrifice of the property. The weight of authority, including that of this court, is, that mere inadequacy of price, of itself, is not sufficient to set aside a sheriff’s sale otherwise valid, but that gross inadequacy of price, in connection with slight additional facts showing fraud, irregularity, or other circumstances calculated to prevent the property from bringing something like its reasonable value, might avoid the sale. (Freem. on Ex., sec.. 309; Allen v.

Stephanes, 18 Tex., 658; Chamblee v. Tarbox, 27 Tex., 139.) What those additional circumstances are, depends upon the facts of the particular case; but we think it safe to say that they should be such as are not attributable to the direct agehcy of the defendant in execution. (Freem. on Ex., sec. 309 ; Law v.

Smith, 4 Ind., (Por.,) 56.) In this case the defendant in execution was absent from the State at the time of the levy and sale, and the evidence tends to prove that he had no authorized agent in the county to point out property, although demand had been made of him for a levy on previous executions, on this very judgment, with which he had failed to comply.

It further tended to prove that the deed to the land in controversy and the deeds to his uncultivated lands had not been recorded, and also that the sheriff did not have such information as to the last-named lands as to sufficiently designate them for the purposes of a levy.

Although the defendant was not absolutely required to record his titles, yet we think the failure to put them upon the public records, the place where parties would usually search for information in regard to them, would, under the other circumstances in testimony, have a tendency to excuse the defendant from a levy on the wild or uncultivated lands, and might have greatly weakened the confidence of the bidders in the validity of the title to the land sold, and thus affected the price.

The charge complained of virtually instructed the jury that gross inadequacy of price, connected with a failure to levy upon property in the order designated by the statute, would, in law, be sufficient to set aside the sale.

We think, under the circumstances, that the charge was erroneous, and calculated to mislead the jury, in not also submitting to them, in this connection, the question as to whether this grossly inadequate price might not have been occasioned by the acts and omissions of the defendant in execution as shown by the testimony. [Opinion delivered December 9, 1879.] For this error the judgment is reversed and the cause remanded. Reversed and remanded.