Flanagan v. Pearson , 50 Tex. 383 ( 1878 )

Gould, Associate Justice.

Pearson claimed the land, to recover which he brought this suit, as purchaser at execution sale in 1871, under a judgment in his favor against J. W. Flanagan, of date May, 1867, and affirmed on appeal to this court in 1869. For a history of the claim on which that judgment was founded, and of further litigation in regard to it, see Flanagan v. Pearson, 42 Tex., 1. The appellants, besides claiming an undivided half interest in the land as the heirs of their mother's community interest therein, also claimed under a deed of trust from their father, J. W. Flanagan, of date April, 1868, conveying a large amount of property to A. D. Tinsley as trustee, to be held by him for the benefit of appellants, his children, the consideration expressed being an alleged indebtedness to them. In the fall of 1868, J. W. Flanagan was declared a bankrupt, and, on application of his assignee, the Bankrupt Court authorized him to release and convey the property specified in the deed of trust to the trustee, in part payment of the indebtedness acknowledged in that instrument. This conveyance was duly executed. Afterwards, Pearson, whose judgment against J. W. Flanagan was not within the operation of the discharge in bankruptcy, had his execution levied on a part of this property, including the land in controversy, became himself the purchaser for a small sum, and on January 1, 1875, brought this suit of trespass to try title to recover the land. In the course of his pleadings he assails the deed of trust as fraudulent. In their answer appellants sought to have the sheriff’s sale, under which Pearson claimed, set aside, charging Pearson with fraud, in intentionally procuring the sale pending an injunction growing out of a former levy, and under an execution and levy in various particulars irregular, with the view of buying in the land at the grossly inadequate price for which it was knocked off to him. J. W. Flanagan also sought to become a party, and to join in the application to have the sale set aside. The court sustained exceptions to the application of J. W. Flanagan to be made a party, and also to the answer of the other appellants seeking to attack the sheriff’s sale to Pearson, and after hearing the evidence, a jury being waived, rendered judgment in favor of Pearson for the land sued for. We see no error in the refusal to allow J. W. Flanagan to become a party and to, attack the sale. He had no interest in the land sold, nor in the question of the validity of the sale. According to his own showing, the judgment against him was satisfied, and as appellants tendered to Pearson the amount of his bid, it would remain satisfied if the sale was set aside.

But the court also sustained exceptions to that part of the answer of appellants, the opposing claimants of' the land, impeaching the sale. It would seem that the court held that as they were not parties to that judgment they had no right to attack proceedings under it. This court, in the recent case of Cravens v. Wilson, has recognized a more liberal rule, allowing other parties interested in the subject-matter of the sale, and interested in its being sold for a fair price, so as to leave a surplus for their benefit, to proceed to have the sale set aside for fraud, irregularity, and consequent gross inadequacy of price. (48 Tex., 340, and authorities there cited; Freem. on Ex., sec. 305.) The propriety of that rule is apparent in this case; for otherwise it would seem that the sale, no matter how grossly fraudulent, must be allowed to stand, because no one has a right to attack it.

The position of appellants is not that of adverse claimants of property levied on, seeking to avail themselves of mere irregularities in the execution. Their position is, that property in which they were interested has been sacrificed in such a way as to amount to a fraud, and to their injury. Our opinion is that the court erred in refusing to entertain that part of the answer or cross-bill seeking to have the sale set aside.

As this conclusion requires a reversal of the judgment, we do not feel called on at this stage of the case to consider other questions which possibly may not again arise.

The judgment is reversed and the cause remanded.

Reversed and remanded.