#### A. R. ODLE v. FROST, BARRY & LEE.

SUPREME COURT,

AUSTIN TERM, 1883.

*Judgment*— Collateral *Attack of.*— Evidence upon winch a court proceeded to render judgment cannot he inquired into in a collateral proceeding.

*JirrtsOtelitM*— Credit.—The owner of a debt may admit a payment of it, either of principal or interest, which will prevent, him from ever afterward claiming the amount credited.

*Hale*— Inadequacy *of Price.*— Where no fraud in making sale of land was shown, inadequacy of price is not sufficient to sot the sale aside.

Appeal from Navarro County.

Opinion by

Willie, C. J.

This suit is a collateral attack upon a judgment rendered by a *96justice of the peace. The principal allegations of the plaintiff’s petition are to the effect that the judgment was rendered upon insufficient evidence and without jurisdiction of the subject matter of the suit, or of the person of. the defendent in the judgment. It is too clear for argument that the evidence upon which the court proceeded to render the judgment could not be inquired into in this action.

It was of no importance as to the jurisdiction of the justice when collaterally assailed, whether he gave judgment upon proof of 'the demand made by a certified copy from the records of a justice courj; in Tennessee, or upon other proof establishing the claim. If he admitted improper evidence it was the duty of the defendant to object to it when offered and he cannot obtain a new trial by questioning the title to land sold in execution of the judgment obtained in the suit. Haley v. Villeneuve, 11 Tex. 617. Hope v. Ally, Ib. 259.

Nor is there anything in the objection made to the jurisdiction Of the court that the appellant was sued out of the precinct of his residence. He was duly served with process, and if he did not appear he waived the personal privilege of being sued where he lived, and the judgment against him, under the circumstances, was legal. As to the jurisdiction of the justice over the subject matter, the principal of the claim upon which the suit was brought was $199, within the justice’s jurisdiction. It had been $200.09, but was reduced to the above amount by a credit of one dollar and nine cents, placed upon it just before the suit was brought. The only evidence that this was done for the purpose of giving the court jurisdiction was the fact that the credit was entered just before the claim was handedlo the justice for suit, and the statement of appellant that he had not paid anything on the claim or authorized a credit upon it.

This latter might have been true and yet the payment made for him by another. But had the money never been paid by anyone it cannot be doubted that the owner of a debt may admit a payment of it, either of principal or interest, which will prevent him from ever after claiming the amount credited. Tooke v. Bonds, 29 Tex. 419.

Whether the creditor can by giving such credit bring the claim within the jurisdiction of the justice when it otherwise would not be, is not a question in the case — though it may be added that it has been decided in the affirmative in this State. Fuller v. Sparks, 39 Tex. 138.

The court having the undoubted right to take cognizance of a *97claim reduced to 8199 by a payment, the object of the plaintiff in giving the credit cannot be questioned collaterally, — the debt on its face appear* to be within the justice’s jurisdiction; no other .court could take original cognizance of it. If the jurisdiction apparent on ihe face of the proceedings can be defeated for the improper means of obtaining it, it must be by a direct proceeding in the way of an appeal or to set aside the judgment as in case of judgments voidable and not void, and not in the collateral manner pursued by the ap-. pellant. Fleming v. Seeligson, 57 Tex. 524.

The inadequacy of the price for which the land sold was not sufficient to set aside the. sale. No fraud in making the sale was shown, but the smallness of the price was caused by doubt as to appellant’s title, he having previously sold the land to Goodnight. Allen v. Stephans, 18 Tex. 658.

As to the ruling of the court, admitting in evidence the deed from Kerr to Goodnight, it cannot be noticed because the bill of exceptions does not state the objections which were made to the admission of the instrument. Besides the court rendered judgment for appellees on the points we have discussed above, without taking the deed into consideration, and the evidence outside of the deed was sufficient to justify its decision.

The judgment is affirmed.