Gould, Associate Justice.
On October 7, 1868, a certain tract of land was sold by H. C. Stone and his wife Cornelia, administrators of the estate of E. T. Branch, deceased, under an order of court to raise an allowance for the minor heirs of said estate; and return of sale to Joseph Richardson having been made, the County Court made its order confirming the same and directing title to be made to Richardson upon his payment of the purchase-money. Conveyance was accordingly made, of date November 5, 1868.
This suit was instituted in March, 1876, within two years after the close of the administration, by the plaintiffs, as owners of a large established claim against said estate, seeking to have said sale and the order confirming it set aside, and the land subjected to the payment of their claim.
That claim was originally presented by the executor of the estate of Lucy Johnson, the mother of plaintiffs; wras rejected by the administrator of Branch’s estate, and was, it wms alleged, established by suit, resulting in judgment in February, 1870. The records of both District and County Courts having been destroyed by fire, one prayer of the petition was, to [493]*493have the judgment substituted, the heirs of the estate of Branch being made parties defendant. The grounds upon which the sale was sought to be set aside were:
“1. That the said sale was made without notice.
“2. That said sale was made for a grossly inadequate price.
“3. That the land in suit did not bring a sufficient proportion of its actual value in order to give the court jurisdiction to confirm said sale.
“4. That the administrator furnished the purchase-money; that in so doing he acquired,the equitable title, and became himself the purchaser.
“ 5. That Joseph Richardson and the administrator colluded together and purchased the property, with the understanding and agreement that- said Stone was to run the place and divide the profits, and to afterwards convey to said Stone one-half of the property.”
The result of the trial was a general verdict and judgment in favor of defendant. Appellants complain that the court by its charge does not submit to the jury all of these grounds, and refused to give charges asked on the others.
In regard to the alleged want of twenty days’ notice of the sale, we remark that the plaintiffs introduced no evidence whatever tending to establish the averment, or to charge the purchaser with notice or knowledge of any such irregularity. .Without intending to intimate that such an irregularity would, of itself, constitute a ground for setting aside the sale, we hold that the confessed recitals in the administrator’s deed did not show the absence of due notice, and that the court did not err" in declining to charge on that issue.
In support of a proposition that the court had no power to approve the sale unless the property brought three-fourths of its actual value, appellants refer to section 2 of what is commonly known as the stay law of I860—a statute which has been held unconstitutional and invalid. (Jones v. McMahan, 30 Tex., 719.)
There was no error in the refusal of the court to instruct [494]*494the jury that various circumstances enumerated were badges of fraud. The issue of fact was not as to the intention with which the sale was made, but as to the existence of a fraudulent understanding between the administrator and purchaser, under which the former was to have an interest in the laud.
Whether a deed be made with a fraudulent design, and whether an administrator’s sale.be made in pursuance of an understanding between administrator and purchaser, are different questions. The court rightly refused the charge, and left the weight of the evidence to be passed on by the jury.
In our opinion, thq charge of the court fairly submitted to the jury the only ground alleged on which, under the evidence adduced, the plaintiffs were entitled to have the jury to pass, namely, the existence of any collusion or understanding between Richardson and the administrator that the latter should buy the land for their'joint benefit.
The jury, under a fair charge, having found that issue of fact in favor of defendant, that verdict is decisive of the case on its merits, and the judgment should not be disturbed unless the record discloses some error entitling appellants to another trial.
We find no such error in the rulings of the court excluding evidence of statements by Stone, made whilst in possession of the land, after the administrator’s sale, but in the absence of Richardson, that he and Richardson were equal owners of the land. The court excluded them on the ground that the reality of the joint ownership was the question in controversy, and we think correctly.
But, in truth, the witness Stone had himself testified that Richardson, after buying the land, sold him one half-interest in it, if witness would control it and manage the workmen ; that he had no conveyance from Richardson, or receipt, or agreement, (written,) and that he thinks he allowed Richardson one-half of what ho hid in the land at for the halt-interest. It abundantly appears from Stone’s testimony and that of others, that he and Richardson agreed to farm in partnership on the [495]*495land, and did so in 1869—disagreed about a settlement—arbitrated their differences, resulting in a division of the land and in a sale by Stone of his half to Richardson, either directly or through the intervention of one of the arbitrators. We arc unable to see that the evidence excluded amounted to anything more than Stone himself testified to. The bill of exceptions does not show that it was proposed to prove Stone’s statement that Richardson and he had any agreement to buy jointly, nor to connect Richardson with any statements made by Stone. The evidence excluded was merely cumulative, and the exclusion, even if erroneous, does not appear to have worked any injury to appellants.
The evidence offered for the purpose of contradicting or explaining the statements of Stone was rightly éxcluded. .The witness bad not answered denying the conversations about which he was interrogated, otherwise than that, if so, he did not know or recollect. Stone’s testimony having been taken by interrogatories, and he having no opportunity to explain, it was not error to exclude the evidence tending to contradict him. (Weir v. McGee, 25 Tex. Supp., 21, and authorities cited.) Especially was this not error, when the matter about which Stone was interrogated was inadmissible or immaterial as against Richardson.
Although Stone, as the husband of one of the heirs, was a party to the suit, it does not appear that any relief was sought against him. Yet it would seem throughout as if the ease against Richardson was only sought to be established by proving Stone’s admissions or acts.
Two of the assignments of error have reference to the jury. The first, in regard to the action of the court in excusing a juror, is not supported by the record. In regard to the second, it does not appear that the juror was disqualified by relationship or otherwise; nor, if he were, that the failure to object to him on that ground was excusable.
The court told the jury that the suit was brought, first, to substitute a judgment, and second, to set aside a sale, and [496]
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Gould, Associate Justice.
On October 7, 1868, a certain tract of land was sold by H. C. Stone and his wife Cornelia, administrators of the estate of E. T. Branch, deceased, under an order of court to raise an allowance for the minor heirs of said estate; and return of sale to Joseph Richardson having been made, the County Court made its order confirming the same and directing title to be made to Richardson upon his payment of the purchase-money. Conveyance was accordingly made, of date November 5, 1868.
This suit was instituted in March, 1876, within two years after the close of the administration, by the plaintiffs, as owners of a large established claim against said estate, seeking to have said sale and the order confirming it set aside, and the land subjected to the payment of their claim.
That claim was originally presented by the executor of the estate of Lucy Johnson, the mother of plaintiffs; wras rejected by the administrator of Branch’s estate, and was, it wms alleged, established by suit, resulting in judgment in February, 1870. The records of both District and County Courts having been destroyed by fire, one prayer of the petition was, to [493]*493have the judgment substituted, the heirs of the estate of Branch being made parties defendant. The grounds upon which the sale was sought to be set aside were:
“1. That the said sale was made without notice.
“2. That said sale was made for a grossly inadequate price.
“3. That the land in suit did not bring a sufficient proportion of its actual value in order to give the court jurisdiction to confirm said sale.
“4. That the administrator furnished the purchase-money; that in so doing he acquired,the equitable title, and became himself the purchaser.
“ 5. That Joseph Richardson and the administrator colluded together and purchased the property, with the understanding and agreement that- said Stone was to run the place and divide the profits, and to afterwards convey to said Stone one-half of the property.”
The result of the trial was a general verdict and judgment in favor of defendant. Appellants complain that the court by its charge does not submit to the jury all of these grounds, and refused to give charges asked on the others.
In regard to the alleged want of twenty days’ notice of the sale, we remark that the plaintiffs introduced no evidence whatever tending to establish the averment, or to charge the purchaser with notice or knowledge of any such irregularity. .Without intending to intimate that such an irregularity would, of itself, constitute a ground for setting aside the sale, we hold that the confessed recitals in the administrator’s deed did not show the absence of due notice, and that the court did not err" in declining to charge on that issue.
In support of a proposition that the court had no power to approve the sale unless the property brought three-fourths of its actual value, appellants refer to section 2 of what is commonly known as the stay law of I860—a statute which has been held unconstitutional and invalid. (Jones v. McMahan, 30 Tex., 719.)
There was no error in the refusal of the court to instruct [494]*494the jury that various circumstances enumerated were badges of fraud. The issue of fact was not as to the intention with which the sale was made, but as to the existence of a fraudulent understanding between the administrator and purchaser, under which the former was to have an interest in the laud.
Whether a deed be made with a fraudulent design, and whether an administrator’s sale.be made in pursuance of an understanding between administrator and purchaser, are different questions. The court rightly refused the charge, and left the weight of the evidence to be passed on by the jury.
In our opinion, thq charge of the court fairly submitted to the jury the only ground alleged on which, under the evidence adduced, the plaintiffs were entitled to have the jury to pass, namely, the existence of any collusion or understanding between Richardson and the administrator that the latter should buy the land for their'joint benefit.
The jury, under a fair charge, having found that issue of fact in favor of defendant, that verdict is decisive of the case on its merits, and the judgment should not be disturbed unless the record discloses some error entitling appellants to another trial.
We find no such error in the rulings of the court excluding evidence of statements by Stone, made whilst in possession of the land, after the administrator’s sale, but in the absence of Richardson, that he and Richardson were equal owners of the land. The court excluded them on the ground that the reality of the joint ownership was the question in controversy, and we think correctly.
But, in truth, the witness Stone had himself testified that Richardson, after buying the land, sold him one half-interest in it, if witness would control it and manage the workmen ; that he had no conveyance from Richardson, or receipt, or agreement, (written,) and that he thinks he allowed Richardson one-half of what ho hid in the land at for the halt-interest. It abundantly appears from Stone’s testimony and that of others, that he and Richardson agreed to farm in partnership on the [495]*495land, and did so in 1869—disagreed about a settlement—arbitrated their differences, resulting in a division of the land and in a sale by Stone of his half to Richardson, either directly or through the intervention of one of the arbitrators. We arc unable to see that the evidence excluded amounted to anything more than Stone himself testified to. The bill of exceptions does not show that it was proposed to prove Stone’s statement that Richardson and he had any agreement to buy jointly, nor to connect Richardson with any statements made by Stone. The evidence excluded was merely cumulative, and the exclusion, even if erroneous, does not appear to have worked any injury to appellants.
The evidence offered for the purpose of contradicting or explaining the statements of Stone was rightly éxcluded. .The witness bad not answered denying the conversations about which he was interrogated, otherwise than that, if so, he did not know or recollect. Stone’s testimony having been taken by interrogatories, and he having no opportunity to explain, it was not error to exclude the evidence tending to contradict him. (Weir v. McGee, 25 Tex. Supp., 21, and authorities cited.) Especially was this not error, when the matter about which Stone was interrogated was inadmissible or immaterial as against Richardson.
Although Stone, as the husband of one of the heirs, was a party to the suit, it does not appear that any relief was sought against him. Yet it would seem throughout as if the ease against Richardson was only sought to be established by proving Stone’s admissions or acts.
Two of the assignments of error have reference to the jury. The first, in regard to the action of the court in excusing a juror, is not supported by the record. In regard to the second, it does not appear that the juror was disqualified by relationship or otherwise; nor, if he were, that the failure to object to him on that ground was excusable.
The court told the jury that the suit was brought, first, to substitute a judgment, and second, to set aside a sale, and [496]*496instructed them, that-if they believed that the executor of Lucy Johnson recovered the judgment as alleged, and that it was destroyed, “you will find for the plaintiff and say by your verdict, ‘We, the jury, find for plaintiff on the first issue.’” If they believed that Joseph Richardson became the purchaser of the land at a bona-fide sale ordered and confirmed by the Probate Court, “you will in that case find for the defendant, Jane Richardson, on the second issue.” If they believed the sale was procured by any understanding between Richardson and Stone which was injurious to the estate, or made for the purpose of enabling Stone to become the owner, in whole or in part, of the land, “you will find for the plaintiffs on the second issue,” and assess the value of the rents from the date of the sale to tlie trial. The verdict was, “We, the jury, find for the defendant,” and upon that verdict judgment was rendered “that plaintiffs take nothing by their' suit, and that defendant go hence without day, and that defendant harm and recover of the plaintiffs, all costs in this behalf expended, and that they have their execution for the same.”
It is assigned as error that the verdict is not responsive to either issue, and cannot support a judgment. The general verdict for the defendant seems to us sufficiently responsive to the charge to show that the jury found for the defendant, Jane Richardson, on the main issue. The judgment itself is certainly objectionable as not setting out the full names of the partiesffor and against whom it is rendered; but there is no assignment of error presenting that objection.
It is objected that the verdict, if intended to be against the plaintiffs, on the first issue, as to the substitution of the judgment, is contrary to the evidence. The evidence that the judgment was recovered and destroyed as alleged, is conclusive and uncontradicted. In the opinion of the writer, that portion of plaintiff’s case, whether regarded as a proceeding under the statute to substitute a destroyed judgment, or as a proceeding for that purpose independent of the statute, might properly have been passed on by the court without a jury. [497]*497The court, he thinks, might have declined to submit to the jury any issue thereon, and have ordered the judgment substituted, if satisfied of its existence and destruction. (Rev. Stats., art. 4286; Freem. on Judg., secs. 89, 89tz, and references; Jackson, ex dem. Smith, v. Hammond, 1 Caines, (Term R.,) 496; Adkinson v. Keel, 25 Ala., 551.)
The court, however, did submit the issue to the jury, and they either failed to pass upon it, or found contrary to the evidence. We are inclined to the opinion that the verdict should be construed as passing only on the second and main issue, and that it constituted no basis for a judgment on the issue of substitution.
As already remarked, the judgment does not set out the names of the parties for and against whom it is rendered; but it does not substitute the destroyed judgment, and seems designed to be in favor of all of the defendants for their costs.
The question presented is whether, either on erroneous finding as to the substitution of the destroyed judgment, or an erroneous judgment on that point, a reversal of the cause is required. The estate of Richardson had no interest in or connection with the question of substitution. The plaintiffs had united their application to substitute, and their petition to set aside the sale in one proceeding; but this appears to have been done for convenience, the heirs of the estate of Branch being necessary parties to both, and entitled to. their costs in both, no matter how decided. The costs of the substitution of the destroyed judgment would have to be paid by the plaintiffs in any event; and the fact that those costs are adjudged against them, constitutes no ground of complaint. The failure to substitute in this case will not preclude further proceedings for that purpose. The judgment, when substituted, is only for the establishment of a claim against an estate, and is not enforcible- by execution.
Our conclusion is, that appellants have suffered, no injury in the matter of the substitution for which the estate of. Richard? [498]*498son should be held responsible, and that no error has been committed which entitles them to have the case reversed.
[Opinion delivered February 6, 1880.]
The judgment is accordingly affirmed.
Affirmed.