The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1883-07-05

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ct al, every point, says the court, dis
cussed by counsel was fully deter
mined by the decision of this court
in the present case when formerly be-
fore it upon appeal. [See state VS..
Wygall, 5 Texas Reports We see no
reason to differ from our predecessors
in the conclusions at which they ar
rived.
Held: When the court refused to
allow the appellees to intervene In
the suit in question, their remedy
was not that of proceeding with their
own cause; but of appealing and as
serting their rights in the very suit |
from which they have been improper
ly excluded.
Further held. as to the point raised |
that appellees were entitled to prefer
ence in judgments against the state,
that even admitting thatsit was the
duty of the state to have the plain
tiffs in one Of the cases made parties
in the other, there was no law to COM
pei her to select one case rather than
: the other for this purpose. The state
was not presumed to know anything
of the claim of the Bishop Clark heirs.
AS to another point raised that the
state is liable because the decision
affirming Judgment oflthe lower court
has been oVerrnled, this court holds
that Judgment of the supreme court,
however erroneous is the law of the
case in which it is rendered, when
that judgment is collaterally attacked,
and that the state did not act illegally
in paying over the Clark assets iii
obedience thereto. She has paid them
to parties who appear from the face
of the proceedings to be the rightful
heirs of the decedent, and the appel
lees cannot, in this suit, set aside the
Judgment in that cause, and retry
their case and have them declared
other than what they were found to
be by the judgment rendered therein.
AS important allegations and proof
of appellant were by the erro-
neous rulings of the court below eX-
Guided from the cause, and appellant
was not able to make out its entire
case, the judgment is reversed and
the cause remanded.-Willie, G. j.
In Hughes ct al. VS.. Duncan ct al.,
suit was brought in October, 1877 by
Hughes against Moore, sheriff of Dali
las county, and Duncan, to restrain
the sheriff from making a deed to
Duncan for piece of land which
Duncan had bid off at foreclosure
sale made by the sheriff, and from re-
ceiving from him the amount of his
bid.
The petition among other allega-
tions set forth that in June, 1877,
plaintiff had recovered against F. E..
Guidry and wife judgment for
$666.37, and for foreclosure of ven
doris lein upon the land in question;
that he had agreed with GuidTy that
10 would not appeal from the judg-
ment, and would pay a part of said
judgment in cash, no execution should
issue upon the Judgment without no.
tice to him, and that Guidry had
paid, etc. But that without the
knowledge of plaintiff the clerk had,
in August, 1878, issued an order of
sale, under which the sheriff had Or
dered the property for sale on Sep
TENDER 2, 1879. and defendant, Dun
can, had bid off the same for $25.
Neither plaintiff nor his attorney was
present, or knew anything of the
sale.
Plaintiff, upon learning these facts,
the same day, Informed the sheriff
and Duncan that the sale had been
made by mistake and without the Or
der of plaintiff, and instructed the
- sheriff not to make the deed or re-
ceive the amount bid. Thereon de-
PENDANT Duncan rendered the amount
to the sheriff and demanded a deed.
1t was further alleged that the sheriff
unless restrained by injunction would
receive the money and make the deed
to the irreparabie damage of plain
tiff; that the property is worth $1,000;
that Guidry and wife are insolvent,
and that this property is the only
source from which he can collect his
judgment against Guidry and wife;
that the money has not yet been paid
on.the deed delivered, and that the
order of sale is still in the hands of
the sheriff PRAYER of the petition is
that Guidry and wife be served with
process and made parties for the writ
of injunction. for Judgment declaring
the sale void and eancelling the same
and for general relief.
The petition was sworn to and in
junction issued the same day, on
which, October 4, 1877, defendant an
swered by general demurrer sp cific
denial under oath of the al
legations of the said petition.
October 5, 1877, defendant moved to
dissolve the injunction on the grounds
that there were no equities on the
face of the petition, and that all the
equities set up are denied in the ans
wer under oath. October Is plaintiff
amended setting forth his claim more
specifically under oath. October IS
defendant Moore answered by general
demurrer and denial, and on same day
defendant Duncan filed a lengthy
amendment under oath in which he
traverSed the allegations of the
a ~ 1910
. Guidry and wife appear and adopting
the allegations of the original petit
Jion pray that the pretended sale be
set aside, and for general relief.
In December, 1879, the case was
submitted without jury, and judg-
ment was for the defendants, Duncan
and Moore, against the plaintiff, and
the defendants Guidey and wife. The
motion for a new trial was
oNerruled, and they appealed.
Held: A sheriff's sale is not complete
till the purchase money is paid, and
that up to that time the bidder may
recede from his bid, being, however,
liable to penalty, and the sheriff
may readvertise and sell the property.
On the question of the adequacy of
price, the court cites the case of Allen
VS.. Stephens us Tex. 672) in which
the chief justice said: "In cases
where the disproportion is so enor-
nous as this property worth 5000
sold for $2l50) but slight additional
circumstances will Justify the infer
ence that the sale is fraudulent"
Also the case of Johnson VS.. Crane
Cos Tex. 500, which bears a striking
resemblance, says Judge Delaney, to
the present case, and seems decisive
of it, with the difference that the
property was there sold for half its
value, and here it brought about one
fortieth. In that case Chief Justice
Gould uses this language: "Al-
though both the sheriff and
the purchaser were guiltless of
any intentional wrong, if the sale was
and under circumstances which made
it unfair to the judgment creditor and
which were also unfavorable to fair
price, the purchase Mt such sale be-
comes so far a participation in the
wrongful or improper manner in
which it was made, that he
is in no condition to object
to the extension of relief to
one otherwise entitled to it,"
Even if the plaintiff concludes the
court is not entirely hlameleSs, GER ]
tainly negligence cannot be imputed
to the defendants, Guidry and wife,
who are equally interested that, the