Wheeler, J.
It will suffice for the disposition of this case, to consider the errors assigned, which have been relied on in argument by counsel for the appellant. And first it is insisted that the Court erred in overruling exceptions to the original and amended petition. The exceptions taken were, that there was a mis-joinder of parties defendant and of causes of action, and inconsistency and repugnancy in the prayer of the petition. In neither respect do we think the exceptions well taken. Although for the purpose of setting aside the sale as fraudulent, it may not have been necessary to join the defendants, Cotton and Stevens, yet as they were charged with a joint participancy in the fraud practiced upon the plaintiff, and were, by the averments of the petition jointly implicated in effectuating the alleged fraudulent sale, upon exceptions to the petition, they must be held to have been properly joined on the principle decided in Birdwell, Adm’r, v. Butler et al. (ante.) It is no objection to the joinder of these defendants, that they may have had no identity of interests to be affected by the judgment. For, in Courts of Equity, persons having very different and opposite interests, are often made parties defendant. (2 Story’s Eq. 1526.)
It was certainly competent for the plaintiff -in stating his cause of action, to frame his petition with a double aspect, and to pray alternative relief; so that in case he failed to bring home to the defendant Teas, a sufficient knowledge of and participancy in the fraudulent acts of his co-defendants, to avoid the sale, he might have his recourse upon the other defendants, for the injury he had sustained by reason of their acts. If the averments of the plaintiff were true—as upon exceptions they must be taken to be—he had his remedy to set aside the sale, and for damages ; and it was not necessary to bring more suits than one against the same parties, to obtain [354]*354the foil measure of redress to which he was entitléd for the same injury.
It is objected to the amended petition that it does not appear to have been filed by leave of the Court; and that it is not sufficiently special in its charges of fraud. It was not ex- ■ cepted to on either of these grounds, but on the sole ground of repugnancy to the original petition. And it is well settled, that where special causes of exception have been assigned, others not assigned will be deemed to have been waived (Crayton v. Munger, 9 Tex. R. 585); and for the obvious reason, that had the objection been taken at the time of excepting, it might have been obviated by amendment. Besides, the right of amendment in a proper case is a right which does not rest in the discretion of the Court. It is subject only to the qualification that it be in itself proper, and be made in time. And the only sensible object there can be in obtaining the leave of the Court, is to give notice of the amendment to the adverse party, in order that it may not operate a surprise. (Connell v. Chandler, 11 Tex. R. 249.) Here the defendants had notice of the amendment, and excepted to it, and cannot therefore have been surprised by it, or in any way prejudiced by the omission to obtain the leave of the Court to file it. Nor is the objection well founded, that it does not allege with sufficient certainty and specialty the facts in which the fraud is charged to consist. These were stated in the original petition, to which it refers for the specification of them; and it was unnecessary to reiterate them in the amendment. In no point of view are the objections tenable.
Again, it is objected that the Court erred, in overruling exceptions to the interrogatories propounded to- the defendant Stevens, and in striking out his answer to the first interrogatory, and in refusing instructions asked by the defendant as to the legal effect of his answer. To this it must be answered that it was the undoubted right of the plaintiff to propound interrogatories to either or all of the defendants tonehing any matters pertinent to the issues. The answer of the defendant [355]*355stricken out was not such as the law required, (Hart. Dig. Art. 736, 737,) but was manifestly evasive and impertinent, and was therefore very properly stricken out, and the interrogatory taken as confessed as to the defendant Stevens. But what should be its effect upon his co-defendants was a different question. And upon this question we cannot revise the rulings of the Court complained of, in refusing instructions asked by the defendants, for the reason that there is no properly authenticated statement of facts; and consequently we cannot know what effect or influence, if any, these rulings had upon the finding of the jury. It is well settled that in the absence of a statement of all the facts, this Court cannot revise the rulings of the Court below in giving or refusing instructions. (Armstrong v. Lipscomb, 11 Tex. R. 649.) It is evident that the statement in the record cannot be received as an authentic statement of facts, for two reasons : it was not made out and certified to by the Judge until a year after the trial, and the certificate does not purport that it certainly contains all the evidence adduced in the case, but only that it is all that the Judge can recollect “ after the lapse of so long a period of time.”
There was no error in refusing to permit the defendant Stevens, to amend his answer which had been stricken out or afterwards to testify in the case to exculpate himself and his co-defendants. It would be of dangerous consequence to the rights of honest litigants to permit amended afterthought swearing under such circumstances.
The Court rested its judgment on the sole ground of the fraud practiced upon the plaintiff in effecting the sale of his land by the parties under the circumstances of the case. And on that ground we think the judgment ought to be affirmed. The verdict conclusively establishes that Teas was apprised (among other matters calculated to put him upon inquiry) that the defendant in execution, the present plaintiff, objected to the sale; and that the plaintiff in execution did not require him to complete the purchase. He is presumed to have been [356]*356aware of the value of the land, and he must have known that he was purchasing for a price which no man in his senses would be willing to accept, and for which no honest and fair man would take another’s property without his consent. He knew at least, that it was a most inequitable, if he did not also know that it was a most iniquitous bargain, and that it was objected to as improper; and if he was not fully apprised of the unjust, oppressive and fraudulent conduct of his co-defendant Cotton, he at least was apprised of enough to have put him upon inquiry ; and the sources of information appear to have been at hand. As an honest'and fair man he should have made inquiry ; and if he would not, and therefore was not apprised of all the facts,—as there is little reason to doubt he was,—it was his own fault, and he must suffer the consequences of the annulling of the fraudulent and oppressive bargain, which, though cautioned, he persisted in consummating, and seeks to uphold. The judgment is affirmed.
A. P. Wiley, for plaintiff in error, for a re-hearing.
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Wheeler, J.
It will suffice for the disposition of this case, to consider the errors assigned, which have been relied on in argument by counsel for the appellant. And first it is insisted that the Court erred in overruling exceptions to the original and amended petition. The exceptions taken were, that there was a mis-joinder of parties defendant and of causes of action, and inconsistency and repugnancy in the prayer of the petition. In neither respect do we think the exceptions well taken. Although for the purpose of setting aside the sale as fraudulent, it may not have been necessary to join the defendants, Cotton and Stevens, yet as they were charged with a joint participancy in the fraud practiced upon the plaintiff, and were, by the averments of the petition jointly implicated in effectuating the alleged fraudulent sale, upon exceptions to the petition, they must be held to have been properly joined on the principle decided in Birdwell, Adm’r, v. Butler et al. (ante.) It is no objection to the joinder of these defendants, that they may have had no identity of interests to be affected by the judgment. For, in Courts of Equity, persons having very different and opposite interests, are often made parties defendant. (2 Story’s Eq. 1526.)
It was certainly competent for the plaintiff -in stating his cause of action, to frame his petition with a double aspect, and to pray alternative relief; so that in case he failed to bring home to the defendant Teas, a sufficient knowledge of and participancy in the fraudulent acts of his co-defendants, to avoid the sale, he might have his recourse upon the other defendants, for the injury he had sustained by reason of their acts. If the averments of the plaintiff were true—as upon exceptions they must be taken to be—he had his remedy to set aside the sale, and for damages ; and it was not necessary to bring more suits than one against the same parties, to obtain [354]*354the foil measure of redress to which he was entitléd for the same injury.
It is objected to the amended petition that it does not appear to have been filed by leave of the Court; and that it is not sufficiently special in its charges of fraud. It was not ex- ■ cepted to on either of these grounds, but on the sole ground of repugnancy to the original petition. And it is well settled, that where special causes of exception have been assigned, others not assigned will be deemed to have been waived (Crayton v. Munger, 9 Tex. R. 585); and for the obvious reason, that had the objection been taken at the time of excepting, it might have been obviated by amendment. Besides, the right of amendment in a proper case is a right which does not rest in the discretion of the Court. It is subject only to the qualification that it be in itself proper, and be made in time. And the only sensible object there can be in obtaining the leave of the Court, is to give notice of the amendment to the adverse party, in order that it may not operate a surprise. (Connell v. Chandler, 11 Tex. R. 249.) Here the defendants had notice of the amendment, and excepted to it, and cannot therefore have been surprised by it, or in any way prejudiced by the omission to obtain the leave of the Court to file it. Nor is the objection well founded, that it does not allege with sufficient certainty and specialty the facts in which the fraud is charged to consist. These were stated in the original petition, to which it refers for the specification of them; and it was unnecessary to reiterate them in the amendment. In no point of view are the objections tenable.
Again, it is objected that the Court erred, in overruling exceptions to the interrogatories propounded to- the defendant Stevens, and in striking out his answer to the first interrogatory, and in refusing instructions asked by the defendant as to the legal effect of his answer. To this it must be answered that it was the undoubted right of the plaintiff to propound interrogatories to either or all of the defendants tonehing any matters pertinent to the issues. The answer of the defendant [355]*355stricken out was not such as the law required, (Hart. Dig. Art. 736, 737,) but was manifestly evasive and impertinent, and was therefore very properly stricken out, and the interrogatory taken as confessed as to the defendant Stevens. But what should be its effect upon his co-defendants was a different question. And upon this question we cannot revise the rulings of the Court complained of, in refusing instructions asked by the defendants, for the reason that there is no properly authenticated statement of facts; and consequently we cannot know what effect or influence, if any, these rulings had upon the finding of the jury. It is well settled that in the absence of a statement of all the facts, this Court cannot revise the rulings of the Court below in giving or refusing instructions. (Armstrong v. Lipscomb, 11 Tex. R. 649.) It is evident that the statement in the record cannot be received as an authentic statement of facts, for two reasons : it was not made out and certified to by the Judge until a year after the trial, and the certificate does not purport that it certainly contains all the evidence adduced in the case, but only that it is all that the Judge can recollect “ after the lapse of so long a period of time.”
There was no error in refusing to permit the defendant Stevens, to amend his answer which had been stricken out or afterwards to testify in the case to exculpate himself and his co-defendants. It would be of dangerous consequence to the rights of honest litigants to permit amended afterthought swearing under such circumstances.
The Court rested its judgment on the sole ground of the fraud practiced upon the plaintiff in effecting the sale of his land by the parties under the circumstances of the case. And on that ground we think the judgment ought to be affirmed. The verdict conclusively establishes that Teas was apprised (among other matters calculated to put him upon inquiry) that the defendant in execution, the present plaintiff, objected to the sale; and that the plaintiff in execution did not require him to complete the purchase. He is presumed to have been [356]*356aware of the value of the land, and he must have known that he was purchasing for a price which no man in his senses would be willing to accept, and for which no honest and fair man would take another’s property without his consent. He knew at least, that it was a most inequitable, if he did not also know that it was a most iniquitous bargain, and that it was objected to as improper; and if he was not fully apprised of the unjust, oppressive and fraudulent conduct of his co-defendant Cotton, he at least was apprised of enough to have put him upon inquiry ; and the sources of information appear to have been at hand. As an honest'and fair man he should have made inquiry ; and if he would not, and therefore was not apprised of all the facts,—as there is little reason to doubt he was,—it was his own fault, and he must suffer the consequences of the annulling of the fraudulent and oppressive bargain, which, though cautioned, he persisted in consummating, and seeks to uphold. The judgment is affirmed.
A. P. Wiley, for plaintiff in error, for a re-hearing.
The counsel for the plaintiff' in error in the above entitled cause respectfully requests a reconsideration and re-hearing therein ; in support of which it is submitted, that the issues as found by the jury do not make out such a case of fraud against Teas as to deprive him, in equity at least, to be re-imbursed the money which he advanced to satisfy the judgment against McDonald and Cotton, and that the sale should not be set aside until this was done. The case of Howell’s heirs v. McCreary’s heirs and others, in Kentucky, is a case precisely in point, and much stronger against the purchaser than this, and yet in that case the Court decided that relief' would not be granted except upon restitution of the purchase money. (7 Dana, 389.)
We have attentively considered the application for a re-hearing, but see no reason to award it. It is, [357]*357in general, true that a Court of Equity will not set aside a sale and restore the property to the owner without requiring him to refund the purchase money which he has received. (Howard v. North, 5. Tex. R. 290; 9 Tex. R. 385; Hatch v. Garza, 7 Tex. R. 60.) And this upon the principle that he who seeks equity must do equity. Whether fraud in the purchaser will in any case constitute an exception to the rule, it is not necessary in this case to inquire. For the rule is only applicable in those cases where it is just and equitable, as between parties, that it should be applied. And where the property of a judgment debtor is sold, and the price applied in payment of his debt, if he would set aside the sale, and be restored to the possession of his property, the law deems it just and equitable that he should refund the purchase money which he has received. But in this case, if Teas, the purchaser of the property, was chargeable with notice of the facts, as we think he was, he is to be deemed to have purchased with a knowledge of the fact that the judgment debtor, whose property he purchased, though legally liable to the plaintiff in execution, yet, as between him and his co-defendant Cotton, was not equitably liable; for that he had paid his proportion of the debt, and really owed nothing; and that his co-defendant Cotton, who pointed out the property, was the sole debtor, out of whose property the debt should have been collected; and that he was held so liable by the plaintiff in execution, who did not desire the property of the plaintiff in this suit to be sold in satisfaction of his judgment. After bidding off the property, Teas was apprised that the plaintiff in execution did not require him to pay the money. It was really and equitably the debt of his co-defendant Cotton, at whose instigation he made the purchase, and in whose fraudulent conduct he became implicated, which the purchase money paid by Teas went to extinguish ; and in equity and justice he should look to Cotton, and not to the plaintiff in this suit to refund it. It was not equitable or just to this plaintiff to purchase his property in satisfaction of the debt of another; and it would not [358]*358be just or equitable to require him to refund money which he did not receive, but which was paid for the benefit of another. But it is said that Cotton, who was principally in fault, and not Teas, should be the sufferer. But Teas permitted himself to become the instrument of Cotton in perpetrating the wrong done the plaintiff. It was not the duty of the plaintiff to ask an adjustment of their respective rights. Nor could the Court interpose for that purpose, unless they had so framed their pleadings as to render such an interposition proper. If when sued for the restoration of the property, Teas had manifested a willingness to do justice, and had asked equity of his co-defendant Cotton, his claims to relief might have been considered. But having adopted a different course, and occupied the same position in his defence as his co-defendant, he cannot now claim the advantage of an inconsistent position. And to require the plaintiff to make restitution to him, would be to enable the defendants to avail themselves of the amicable position they assumed upon the record, to impute to themselves for their own advantage, the fraud practiced upon the plaintiff. They severed in their answers it is true, but they urged substantially the same defences, and seemed to have been actuated by a common purpose, the defeat of the plaintiff’s just rights. And they must be held to all the consequences of the character and attitude which they have assumed upon the record.
Judgment affirmed.