L. T. Edwards and Elmer & Breen v. B. J. Norton, 55 Tex. 405

Gould, Associate Justice. By reference to the report of this case when formerly before this court (48 Tex., 291), it will be seen that it was a suit instituted July 19, 1875, by Norton against Edwards, to enforce specific performance of a parol sale of a town lot, and to recover rents collected by Edwards. -On the application of plaintiff, the premises were placed in charge of a receiver, with instructions to rent the same and collect the rents.

After the reversal of the former judgment in favor of Norton, Elmer & Breen intervened, alleging a purchase and deed from Edwards on September 9, 1875; that Edwards was insolvent, and claiming that the rents be paid over to them. They also alleged a purchase on July 2, 1878, at a sale under execution for costs against Norton, issued from this court. The court sustained exceptions" to so much of the petition of intervention as set up title under this execution sale, on the ground that the premises were not subject to levy and sale whilst in the custody of the court.

The trial resulted in a verdict and judgment for Norton, and the first proposition presented by appellant denies that real estate in the hands of a receiver to hold possession and collect the rents is protected from levy. It is urged that a levy on real estate leaves the possession undisturbed, and that the purchaser takes the title of the defendant in execution subject to the possession of the receiver and the result of the suit. In the case of Wis-wall v.

Simpson, 14 Howard, pp. 66-8, this argument was said not to meet the objection; that the court must administer the fund in its hands “independently of any rights acquired by third persons pending the litigation. Otherwise (it is said) the whole fund may have passed out of its hands before the final decree, and the litigation become fruitless.” In that case the sale was declared illegal and void. See also Freeman on Executions, sec. 129; High on Receivers, sec. 163.

Appellants have produced no authority supporting such a sale made without the leave of the court, whose receiver was in possession of the premises, and we see no sufficient reason why the rule should be relaxed so as to facilitate execution sales of real estate in litigation. It is suggested by appellee that Norton’s interest was a mere equity, not subject to forced sale, and the case of Henricks v. Snediker is referred to in support of the proposition. 30 Tex., 296.

In that case it is said: “If uncertain interests of this sort are the subject of sale under execution, evidently they must be made at ruinous sacrifices to debtors, and without effecting the purpose of the law in satisfying the claims of creditors. ” We are inclined to the opinion that this objection to the sale is also well taken. The second error complained of is that the court overruled an application for a continuance made by the intervenors Elmer & Breen. Appellants claim that Elmer & Breen were not mere intervenors, but were necessary parties, and entitled to continue the suit as such.

Their purchase from Edwards was nearly two months after the institution of the suit, and the court below correctly treated them as “in no better condition than the defendant,” and in its charge rightly told the jury that they could recover only in case the “verdict as between the plaintiff and defendant Edwards should be for the defendant.” Having purchased pendente lite, we think they did so at their peril; and so far from being necessary parties, they occupied as intervenors a less favorable position, and were less entitled to delay the case, than if their rights had accrued prior to the litigation.

For this reason they were in no condition to claim a continuance of the case. For a like reason they cannot complain because the court, after having, at their motion, suppressed the depositions of Edwards taken at his own instance, because of informality in the indorsement, allowed plaintiff, after proving the handwriting of Edwards, to read his answers to those depositions, as admissions by him. The objection is, that the admissions of Edwards, made after he had parted with all interest in the subject matter of the suit, were not evidence against them.

But Edwards was still a party defendant, and his answers to interrogatories irregularly taken, like any other admission of his, were good evidence against him. Lacoste v. Bexar Co., 28 Tex., 422; 1 Greenleaf on Ev., sec. 552. As the answers were admissible against Edwards, and as the intervenors stood in his shoes, their rights being wholly dependent on his, no injury to them could result. The charge of the court embraced substantially so much of the charges asked as we think should have been given.

The position that the suit would be too late after one year’s adverse possession has not been supported by any citation of authority. The verdict of the jury did not rest on the unsupported testimony of the plaintiff, as on the former trial. In various material particulars tending strongly to establish his version of what transpired between him and Edwards, his testimony is corroborated by that of different witnesses. It is true that he is contradicted in other material points by other witnesses. But the jury have settled this conflict by their verdict, and that verdict should not be disturbed.

The judgment is affirmed. Affirmed. [Opinion delivered October 14, 1881.]