McLean v. Stith

112 S.W. 355, 50 Tex. Civ. App. 323, 1908 Tex. App. LEXIS 583

• Court: Court of Appeals of Texas
• Decided: April 22, 1908
• Status: Published

Opinion

OPINION ON REHEARING.

Delivered June 17, 1908.

1. Lis pendens does not necessarily terminate upon rendition of judgment, but may continue for a reasonable time thereafter to perfect appeal or remedy to set it aside; and this, as to time, must depend upon the facts of the particular case. 2 Pom. Eq. (2d. ed.), secs. 634 to 641; 21 Am. & Eng. Encyc. L., 2d ed., 618, 619 and note 3.

2. As additional authorities on the question that the four years statute of limitation applies, we cite Cetti v. Dunman, 64 S. W., 789, writ of error refused; McCampbell v. Durst, 40 S. W., 317; San Antonio National Bank v. McLane, 96 Texas, 48. When an action is instituted to set aside a sale within the period prescribed by law, laches has no application; and if, in the face of such a statute, any effect can be given to a rule that requires such suits to be instituted within a reasonable time after sale, or the time that the same could have been discovered or was discovered, such time should, by analogy, be held to the period prescribed by the statute. Garvin v. Hall, 83 Texas, 295; Storer v. Lane, 1 Texas Civ. App., 257. In New York & Texas Land Co. v. Hyland, 8 Texas Civ. App., 616, this court in effect, said, that if the law prescribes a period of limitation in which an action may be brought, the statute will govern, and laches and stale demand will not apply, and for this ruling cites cases mentioned in the opinion. A writ of error was refused. If the statute has prescribed a period of limitation in which a party is entitled to sue to set aside a judgment or sale under it, we fail to appreciate the reason for a rule that will abrogate or control such statute by shortening the time for suit, on the ground that the plaintiff did not act within a reasonable time.

3. A prayer for general and special relief will authorize a judgment setting aside a sale. Garvin v. Hall, 83 Texas, 301.

4. A purchaser who has notice of a fact that will avoid the title of his grantor accepts the risk of having his title defeated. Milby v. Regan, 16 Texas Civ. App., 355; Snow v. Hawpe, 22 Texas, 171; Ayres v. Duprey, 27 Texas, 603; Marks v. Cowles, 61 Ala., 305.

5. When an execution sale is attacked it is not necessary to show affirmatively that the ground relied upon to avoid it in connection with inadequacy of price occasioned such inadequacy, the natural connection can be presumed. Weaver v. Nugent, 72 Texas, 279.

6. The mental capacity or incapacity of Stith was not an issue settled by the fraudulent judgment obtained by the bank, but. was a fact that existed at the time of the sheriff’s sale; and as it was generally known that he was mentally incapacitated, that fact could and should be considered as deterring bidders, and as causing, to some extent, the gross inadequacy of price for which the land was sold. Crosby v. Bannowsky, 95 Texas, 449.

7. Searcy v. Hunter, 81 Texas, 647, holds that the right of a minor to disaffirm or set aside a sale made by him when a minor, can not be defeated on the ground that his vendee has sold for a valuable consideration the property to an innocent purchaser. Query: Why should not the same rule apply when a conveyance executed by an insane person is sought to be set aside?

8. We repeat that the principle decided in Houghton & Robinson v. Rice, 15 Texas Civ. App., 562 to 569, and the reasons there stated are peculiarly applicable to this case. Bice was insane and his property was sold under execution for an inadequate consideration, without substantial benefit to him, at a time when he had no representative present to protect his interests. The principle decided was that as the sale was essentially unfair to him, and he being a lunatic, that was sufficient ground for setting it aside.

In this case the sale to the bank, under the facts as found by the trial court and stated by this court, was for a grossly inadequate consideration, and from which Stith received no benefit. Therefore, it was as to him, essentially unfair; which fact, coupled with his insanity, would be sufficient ground upon which to base a suit for setting aside such sale. McLean, when lie purchased from the bank, must have known of the existence of the facts that would authorize Stith, as against the bank, to set the sale aside. .He was familiar with the land and its value, and knew that the bank had purchased it for a grossly inadequate consideration; and if, under such a state of facts, the absence of knowledge of the insanity of the party whose land is sold, could in any case operate as a defense to a purchaser from the one who purchased at execution sale, such a rule should not apply in this instance, because there could be no question but that McLean knew of the mental incapacity of Stith. He and McLean were attorneys living in the town of Llano and were well acquainted, and during the period of insanity had business transactions together; and the insanity was so well known in the community that it is unreasonable to suppose that McLean did not know or hear of it. The town of Llano where they resided is a comparatively small place, and it is not likely that one of the attorneys there located who had become insane could conceal that fact from his brother attorneys, and that they would not become aware of his condition. Houghton & Robinson, v. Rice, supra.

The insanity of Stith was an important issue in the trial of the case, and McLean testified in person at the trial, and whilst he had the opportunity to do so, he did not deny the fact that he possessed knowledge of the mental condition of Stith. His testimony shows that he was well acquainted with Stith during that time, or part of it, at least, and he says: “At that .time I knew Mr. Stith had been complaining, but at that time he was very sprightly, so far as I could see.” This could be taken as an admission that he knew of Stith’s condition, and also as an expression of his opinion that at the time preceding his purchase from the bank Stith appeared to be sprightly. Without going further than this admission, it is sufficient to fix upon McLean a knowledge of the condition of Stith; and, when we consider the testimony of other witnessés, that condition is shown to be one wanting in mental capacity.

Motion overruled.

Writ of error refused.