Hughes v. Duncan

Opinion by

Delaney, J.

This suit was brought, not exactly to rescind a sale, but rather to prevent its consummation.

A sheriff’s sale is not complete until the purchase money is paid. Up to that time the bidder may recede from his bid, being however, liable to a penalty and the sheriff may re-advertise and sell the property. (Pasch. 3786, R. S. 2321.)

The defendant in this case, then, in pressing his claim to the property occupies, to a limited extent at least, the position of a party-seeking the specific performance of a contract. The rule is almost universally accepted that inadequacy of price alone is not sufficient to justify the annulment of an execution sale. But says Mr. Freeman : “Occasional cases of great hardship arise and rssult in the questioning of the general rule; * * * or if the rule is not questioned, the court will at least, look anxiously for some reason whereby, without disputing the general rule, it may justify itself in declaring that the rule is not applicable to the case before it.” (Freeman on Ex., 309.) Accordingly in Allen v. Stephaner, 18 Tex., 673, the Chief Justice says, “In cases where the disproportion is so erroneous as this, but slight additional circumstances will justify the inference that the sale is fraudulent.” Li that case property worth $000, had been sold for $31.50. So in Chandler v. Tarbox, 27 Texas, 165, Justice Moore adopts expressions which the courts have used for nearly a century, as follows : “If the bargain is such as no man in his senses would make, and that no honest and fair man should accept, and there are circumstances attending the sale which may have operated to prevent the property from bringing a higher price, although at the time, they may in fact have been unknown to the purchaser the sale will be regarded by the court as in its legal sense, fraudulent.”

In both these cases the sales were collaterally attacked. In Ballard v. Anderson, 18 Texas, when a large amount of property was sold in bulk for a trifling sum, and the purchaser brought suit to enforce the contract, the sales was held void upon general demurrer. In Paul v. Wright, 45 Texas, 395, Justice Moore says: “When there is enormous inadequacy of price at a sheriff’s sale, if there be but slight irregularities or other circumstances attending it calculated to prevent the property from bringing something like its reasonable value, it is regarded as uncouscientious in the purchaser to hold the property so purchased and his deed will be canceled.” This was a direct proceeding to set aside the sale.

The case of Johnson v. Crane, 55 Texas, 571, bears a striking resemblance to the’present, and seems decisive of it, with this difference that the property was there sold for half its value, and here it brought only about one-fortieth part. In that case Chief Justice Gould used this language : “Although both the sheriff and the purchaser were guiltless of any intentional wrong, if the sale were had under circumstances which made it unfair to the judgment creditor, and which were also unfavorable to a fair price, the purchaser at such sale becomes so far a participant 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.” The court below seems to have imputed negligence to the plaintiffs, but it seems to usothat his mistake can be attributed to nothiiig more serious than inadvertence, and hardly deserves to be visited with a penalty so heavy.

Thus in the case of Ontario Bank v. Lansing (2 Wend., 260) where the plaintiff in an execution inadvertently made a serious mistake in the amount of his bid, the court upon his application set aside the sale. (See also the authorities in Freeman on Ex., 308.) But even if the plaintiff be not entirely blameless, certainly negligence can not be imputed to the defendants, Guedry and wife, who are equally interested that the property should bring a fair price, and who join in the prayer for relief. In the interest of the due administration of justice, we thiuk that the judgment should be reversed, and that such judgment should be rendered by the Supreme Court as should have been rendered below, that is, judgment for appellants.

Juke 26,1883.

Report of Commissioners of Appeals examined, their opinion adopted and the judgment reversed and rendered in favor of appellants.

A. H. WILLIE, Chief Justice.