Pleasant H. Pearson v. Henry Hudson et al., 52 Tex. 352

Bonner, Associate Justice. On a former appeal in this case (50 Tex., 383) it was decided that James W. Flanagan, the defendant in execution, inasmuch as he had parted with his title to the property in controversy to appellees, E. B. Flanagan et al., before the levy of the execution, was not a proper party, and he was accordingly dismissed. The present appellees, E. B. Flanagan et al., and who were the real defendants below and in possession, were held to be proper parties defendant, and as such were permitted to contest the validity of the execution sale.

In these two particulars the suit now before the court, in which appellant Pearson is the plaintiff, differs from that recently decided by us, in which James W. Flanagan was plaintiff and appellant Pearson was the defendant in possession. They further differ in the following points: That the last-named case was tried before a jury and reversed for error in the charge; this was submitted to the court without the intervention of a jury.

In that case Pearson set up the statute of limitations and laches on the part of Flanagan, defendant in execution, in the delay in the institution of proceedings to set aside the sale; this he fails to do in the present suit, but the appellees, E. B. Flanagan et al., plead the statute of limitations of three and live years. In that case the evidence shows that the title of James W.

Flanagán to the property there in controversy was not recorded at the date of the levy and sale, and it was held that this, under the circumstances of that case, may have so influenced the price that it should have been submitted to the jury; ill this case the defendants, E. B. Flanagan et al., were in possession by their tenants and had their title recorded. In this suit there are the additional issues that the original trust deed to A. D. Tinsley from James Flanagan for the use and benefit of his minor children, E. B.

Flanagan et al., was void, on the ground that it was made to defraud Pearson, a judgment creditor; and that the deed from H. C. Hunt, assignee of the bankrupt estate of James W. Flanagan, to Tinsley, as such trustee, made in satisfaction of said trust deed, under the order of the United States District Court, was void, because Pearson, being a judgment-lieu creditor, was not made a party to the proceedings. In other respects the material issues and evidence in the two cases are essentially the same. James W.

Flanagan had the right to convey the land subject to the judgment lien of Pearson, and, in this view of the case, the trust deed to Tinsley could not be held to have defrauded Pearson of his lien on the land. The United States District Court had, under the bankrupt-act and practice, jurisdiction to make the order that Hunt, as assignee, make deed to Tinsley, as trustee, to the land in controversy, in part satisfaction of the alleged indebtedness intended to be secured thereby. It -was held in a recent case decided by this court, (Pope’s Administrators v.

Davenport, supra, 206,) that the assignee had the power to sell the interest of the bankrupt in property to which there was an adverse claim, without making the adverse claimant a party, but without prejudice to his interest. These deeds, then, did not affect the right of Pearson to have this land sold to satisfy his judgment lien, and the question returns to the validity of this execution sale. ■The value of the land at the time of this sale was variously estimated from $500 to $1,000, and it was bid off by Pearson, the plaintiff in execution, for the sum of $10, a price grossly .inadequate.

It is contended that this fact, in connection with the irregulavity in the levy, being made upon improved lands, when it appears from the evidence that the defendant in execution had personal property sufficient to have satisfied the same, should avoid the sale. (Paschal’s Dig., art. 3775.) It is said in the case of Pearson v.

Flanagan, supra, 281, that 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; Chamblee v. Tarbox, 27 Tex., 139; Allen v. Stephanus, 18 Tex., 658.) The record here does not show, as it did in that case, that James W.

Flanagan, defendant in execution, or appellees, R. B. Flanagan et al., were guilty of acts or omissions such as were held, as regards James W. Flanagan, the defendant in execution, should have been submitted to the jury as circumstances to explain this inadequacy of price. The only thing with which R. B. Flanagan et al. are chargeable as tending to depreciate the price, is, that they are the beneficiaries in the alleged fraudulent trust deed to Tinsley.

This deed was not made to them direct, being minors, but to Tinsley, as trustee, for their use and benefit "Whether it was fraudulent or not, was one of the issues in the case. The United States District Court acted upon it as though made in good faith.

That it was thus made, seems virtually to have been decided by the court below; and the question of fraud being one peculiarly for the jury, or for the court when a jury is waived, we cannot say— and particularly in view of the fact that the judgment lien was not affected by the deed—that the weight of evidence w-as so greatly against the good faith of the transaction, that the judgment should be reversed on this ground. . (Briscoe v.

Bronaugh, 1 Tex., 340.) Pearson, the plaintiff in execution, is chargeable with notice of the irregularities of the sheriff' in making a levy, and although a stranger might not be bound by them, he, being the purchaser, would he. (Freem. on Ex., sec. 340.) [Opinion delivered December 9, 1879.] The court below having held, under the evidence, that the irregularity of the levy, in connection with the grossly inadequate price for which the land sold, was sufficient to avoid the sale, we do not think, in the light of previous adjudications, that, as between the parties now before the court and the issues presented, there was error in the judgment for which we should reverse it.

The same is accordingly affirmed. (Taul v. Wright, 45 Tex., 388; Freem. on Ex., sec. 388.) Affirmed.