63 S.W. 1032
JOHNSON et al. 
v. 
DANIEL et al.
Court of Civil Appeals of Texas.
June 1, 1901.
        Appeal from district court, Freestone county; L. B. Cobb, Judge.
        Suit by S. A. Daniel and others against W. E. Johnson and others. Judgment for plaintiffs. 
Defendants appeal. Affirmed.
        Boyd, Compton & Anderson, for appellants. Simkins & Mays and R. M. Edwards, for appellees.
        BOOKHOUT, J.
        This suit was instituted on the ____ day of March, 1900, in the district court of Freestone county, by 
Jeffie Daniel, joined by her husband, S. A. Daniel, Gus Daniel, and C. F. Daniel, as plaintiffs, against W. E. 
Johnson and H. H. Powell, sheriff of Freestone county, in the nature of a bill in equity to vacate and set 
aside a judgment by default entered in cause No. 2,376, styled "W. E. Johnson v. S. A. Daniel, Jeffie 
Daniel, Gus Daniel, and C. F. Daniel," entered on the 13th of February, 1900, in favor of W. E. Johnson, 
for 1,400 acres of land out of the east half of the C. Chemar league, in Freestone county, and to recover 
the title to said land. Plaintiffs excused their failure to appear and defend said suit on the ground of their 
sickness, and an alleged verbal agreement made by their attorney with the attorney representing W. E. 
Johnson to the effect that said cause should be postponed until it could be ascertained whether the 
defendants Daniels could come into court, and if they could not that the case would be continued at said 
February term. Plaintiffs set up their several defenses to the suit against them by Johnson, alleged their 
ownership of the land, and that 800 acres of the land was the separate property of the plaintiff Jeffie 
Daniel. The plaintiffs further alleged that Johnson claimed under a sale made by virtue of an execution 
issued on a judgment rendered in the justice court in his favor against S. A. Daniel for $86.70; that the 
levy and sale were made without notice to S. A. Daniel or any of the plaintiffs, without calling upon S. A. 
Daniel to pay the execution or point out a levy; that the land was sold to Johnson for $75, and the bid 
credited upon his execution; that the amount of the bid was grossly inadequate, and insufficient to pass 
the title to the land; it was then and there worth $5,000. Plaintiffs tendered the amount of the bid in court 
($75) for the benefit of defendant Johnson. The plaintiffs also set out an agreement made between Gus 
Daniel and W. R. Boyd for the acquisition of title to 1,600 acres of the land, and alleged that Boyd 
abandoned the same. They alleged that S. A. Daniel was not insolvent in October, 1894, nor rendered 
insolvent by the conveyance of the 1,600 acres to Gus Daniel. They prayed that the cloud cast upon their 
title by the deed to Johnson be canceled and removed. They asked that the judgment by default be set 
aside, and for a perpetual injunction against the enforcement of the same. Defendants answered by 
general and special exceptions, which do not appear to have been called to the attention of the court, 
general denial, and special answer denying material allegations contained in plaintiffs' bill of petition, 
setting up title in W. E. Johnson, and attacking all the conveyances
Page 1033
of plaintiffs as being fraudulent and without consideration. Defendants alleged the conveyance from S. A. 
Daniel to Gus Daniel for 1,600 acres out of the east half of the Chemar league to be without consideration, 
and made to hinder, delay, and defraud his creditors, and alleging that all the plaintiffs had notice thereof. 
W. R. Boyd, with leave of the court, intervened in the case, setting up his claim to 800 acres of land in 
controversy, and alleged that S. A. Daniel, having the apparent title to the land, but asserting no claim 
thereto, an agreement was entered into between Gus Daniel and himself that Gus Daniel would procure a 
deed from his father, S. A. Daniel, to the 1,600 acres of land in the eastern part of the Chemar league, 
and would place it on record, and would enter upon the land and hold it for five years, cultivating and 
improving the same, and paying all taxes thereon, and intervener was to fight all adverse claims that 
might be brought against the land, and Gus Daniel was to convey to him one-half of the 1,600 acres of 
land, and said Gus Daniel was to have the 200 acres he improved as his homestead on his half of said 
land; that Gus obtained the deed from his father without any consideration, and entered on said land, and 
made the improvements agreed upon; that said Gus Daniel subsequently transferred 800 acres of this 
land to his mother, and 500 to his brother; that both of them took the land with full notice of intervener's 
rights; that this suit in the name of W. E. Johnson is now being prosecuted in the name of W. E. Johnson 
for the benefit of this intervener and his partners, R. N. Compton and J. G. Anderson; and prays that, in 
the event that W. E. Johnson is not entitled to recover all of the land, intervener be allowed to recover 
one-half interest of the lands conveyed to Gus Daniel and Jeffie Daniel. There was a trial and verdict in 
favor of the plaintiffs against defendants and intervener, and judgment entered thereon setting aside said 
default judgment, perpetually enjoining the execution of the same, canceling the constable's deed to W. E. 
Johnson as a cloud upon their title. Judgment was rendered in favor of W. E. Johnson and his assigns for 
$75 against all plaintiffs, and awarding execution for the same. The costs were taxed against defendants 
and intervener. Defendants and intervener filed a motion for new trial, which being overruled, have 
prosecuted an appeal to this court. The facts sufficiently appear in the opinion.
        1. The contention of appellants that it was error for the court to proceed to trial, and in not directing 
a verdict for defendants, on the ground that plaintiffs' petition for injunction to vacate a judgment of that 
court was not sworn to, is not well taken. The pleading upon which this contention is based is the second 
amended original petition filed by plaintiffs on September 12, 1900, praying that the judgment in favor of 
Johnson be canceled and set aside, and that he be perpetually enjoined from enforcing the same, and that 
plaintiffs have judgment removing the cloud from their title. It appears from this pleading that an original 
petition and a first amended original petition had prior thereto been filed by the plaintiffs. The record does 
not contain any of the pleadings of plaintiffs filed prior to the time of filing their second amended original 
petition. It may be presumed from the record that upon filing the original petition a temporary writ of 
injunction was issued. Johnson answered on September 3, 1900. W. R. Boyd filed his plea of intervention 
on September 5, 1900. No motion was made by defendants or intervener to dissolve the temporary 
injunction, nor was there any objection made to the pleadings on the ground that they were not sworn to. 
Article 2992, Rev. St., requiring a petition for injunction to be sworn to, applies where a temporary 
injunction is sought during the pendency of the suit, and prior to final trial. Edrington v. Allsbrooks, 21 
Tex. 189; Eccles v. Daniels' Adm'r, 16 Tex. 137; Love v. Powell, 67 Tex. 19, 2 S. W. 456. In the condition 
of the record we must presume, in support of the regularity of the proceedings, that the original petition 
was sufficient to authorize the issuance of the temporary writ. Upon final trial, a judgment awarding a 
permanent writ of injunction may be rendered if, under the facts, plaintiff is entitled to the writ, although 
the petition upon which the case is tried is not sworn to.
        2. It is contended by the appellants that the court erred in failing and refusing to direct a verdict for 
the defendants upon the facts, and especially in not giving defendants, under proper instruction, 600 
acres out of the 800 acres owned by S. A. Daniel and wife, Jeffie Daniel, and for the balance of 514 acres 
claimed by plaintiff C. F. Daniel. If there is evidence which justified the jury in rendering the verdict they 
did, we are compelled to find against this contention. The petition sought to have the judgment by default, 
rendered on the 13th day of February, 1900, in favor of W. E. Johnson and against S. A. Daniel, Jeffie 
Daniel, and Gus Daniel, set aside and annulled. The term of the court during which said judgment was 
rendered had terminated. In such a case relief will not be granted unless the party seeking it can show 
that he was prevented from making a valid defense to the action by fraud, accident, or the act of the 
opposite party, unmixed with fault on his part. Plummer v. Power, 29 Tex. 14; Harn v. Phelps, 65 Tex. 
597; Merrill v. Roberts, 78 Tex. 30, 14 S. W. 254.
        The ground for setting aside the judgment was the existence of smallpox in the family of the 
plaintiffs, which prevented them from attending court, and an agreement by counsel representing the 
parties that the case should be passed to ascertain if plaintiffs could attend court, and, if not, the cause 
was
Page 1034
to be continued for the term. There was evidence, both pro and con, on the issue as to whether such an 
agreement had been made. This issue was submitted to the jury in a charge to which no objection is 
made, and the jury found in favor of the agreement. There is evidence supporting their findings. It was for 
the jury to settle the conflict in the evidence, and, they having done so, we do not feel authorized to 
disturb their verdict. Chase v. Veal (Tex. Sup.) 18 S. W. 597; Sullivan v. Zardeneta (Tex. Civ. App.) 30 S. 
W. 95; Blum v. Watson (Tex. Sup.) 19 S. W. 357; Insurance Co. v. Lee (Tex. Sup.) 19 S. W. 1030. The 
evidence is uncontradicted that the Daniels were unable to attend court at the February term, owing to 
the existence of smallpox in their family, and the establishment of a quarantine against that 
neighborhood. It is shown that the defendants in the default judgment and their attorney had no 
knowledge that the judgment had been rendered, and did not learn of the same until after the 
adjournment for the term, and this suit seems to have been instituted without delay upon ascertaining 
that fact.
        3. It is insisted that the deed from Gus Daniel to Jeffie Daniel for 800 acres of the land shows on its 
face to be a conveyance to the community estate of S. A. and Jeffie Daniel, and that the husband, S. A. 
Daniel, ought not to be permitted to ingraft a trust upon the conveyance in order to defeat the title of the 
purchaser under execution against him. This contention does not fairly arise under the record. The court 
charged the jury as a matter of law that said deed vested the title of said land in the community estate of 
S. A. and Jeffie Daniel. The jury found, under other instructions which are not complained of, for appellee 
upon the issue that the law had not been complied with by the officers in making the levy and sale of the 
property, and that the inadequacy of consideration was caused thereby.
        4. It is contended that the court erred in overruling the motion for new trial, both of defendant and 
intervener, because the verdict of the jury is contrary to the law and evidence, in that it was proven that 
defendant W. E. Johnson had a valid judgment against S. A. Daniel in the justice court, precinct No. 1, 
Freestone county; that the issuance and levy of the alias execution and sale thereunder, and the 
constable's deed, were all regular, and conveyed a good title to the purchaser. W. E. Johnson obtained a 
judgment against S. A. Daniel for $86.70 on April 25, 1898. On October 10, 1898, an alias execution 
issued upon this judgment, and on the same day was levied upon the land in controversy. At the sale 
Johnson bid in the land, 1,400 acres, for $75, and the bid was placed as a credit upon the execution. At 
the time of the levy S. A. Daniel had personal property subject to execution out of which the execution 
could have been made. The officer making the levy knew where Daniel lived, was acquainted with him, 
but did not call upon him to pay the execution or to point out a levy. S. A. Daniel did not receive any 
notice of the levy from the officer making the same. The 1,400 acres of land was at the time of said sale 
of the value of $5,000. The court charged the jury that if they believed from the evidence the land, when 
levied on, outside of the 200-acre homestead tract, was of such value that $75 would be grossly 
inadequate as consideration therefor,—that is, such a price as no person of common judgment would 
regard it as fair, reasonable, or honest; and if they further believed that S. A. Daniel was not notified of 
the levy of Johnson's execution by the constable, and was not called upon by said constable to pay the 
execution, or point out other property for levy, and by reason of such facts the land was sold for less than 
it would have been had said irregularities not existed,—then the sale by the constable should be set aside, 
and in which event they should find for the appellees, and also find for Johnson the sum of $75 tendered 
in court by appellees. Appellants have not assigned error complaining of this charge, and they did not 
request any additional instructions of the court below. The jury found in favor of the appellees, setting 
aside the constable's deed. Where, as in this case, the amount of the bid is grossly inadequate, and the 
defendant in execution is possessed of personal property subject to execution sufficient to pay the debt, 
and has not been called upon to pay the execution or to point out a levy, and a levy is made by the officer 
upon the real estate, and he fails to give notice of the levy to the defendant in execution, the jury is 
justified in setting aside the constable's deed. Weaver v. Nugent, 72 Tex. 274, 10 S. W. 458; Irvin v. 
Ferguson, 83 Tex. 495, 18 S. W. 820; Allen v. Pierson, 60 Tex. 604; Taul v. Wright, 45 Tex. 388; Jones v. 
Pratt, 77 Tex. 210, 13 S. W. 887.
        Appellants, however, contend that prior to the sale S. A. Daniel had actual notice of the levy, and 
that a sale was about to be made. The evidence shows that a few days prior to the sale S.A. Daniel 
learned that the land had been levied upon, and on the day of sale he and his son, Gus, went to the town 
of Fairfield, to see the attorney who had represented him in that suit, and who is one of the appellants 
herein, in reference to the levy and sale, and was advised by said attorney to pay no attention whatever 
to the matter, but let the land sell, as the purchaser would not get any title. Acting on this advice, he took 
no steps to stop the sale. Gus Daniel testified that he wanted to settle the execution if the sale would pass 
a title. He was assured by the attorney that no title would pass by the sale. Actual notice of the sale to the 
defendant in execution will not dispense with the notice required by statute. The appellants cannot insist, 
in view of the
Page 1035
facts, that plaintiffs are estopped from attacking said levy and sale by reason of the fact that S. A. Daniel 
had notice of the levy before the sale was made. It is further insisted that the $75 tendered by plaintiffs to 
the defendants in court should have been left on deposit with the clerk. The defendants recovered 
judgment for this sum against all of the plaintiffs, and they were awarded execution therefor. The record 
does not show that the plaintiffs are insolvent. We conclude that these contentions are without merit.
        5. It is contended that the court erred in overruling the motion of intervener, W. R. Boyd, for a new 
trial, for that the evidence showed a contract between Gus Daniel and W. R. Boyd, by which Boyd was to 
get one-half of the 1,600 acres of land, and it was not shown that the intervener had failed to carry out 
his part of the contract, or that he had abandoned the same. There was evidence from which the jury 
were justified in finding an agreement between Gus Daniel and W. R. Boyd made in 1894, to the effect 
that Gus Daniel was to procure a deed from his father, S. A. Daniel, to 1,600 acres out of the east half of 
the Chemar league, in Freestone county, put the deed on record, and move upon the land and occupy it 
for five years; that Boyd was to defend any and all suits that might be brought against the land, and pay 
one-half the taxes each year assessed against the land; and that at the end of the five years Gus Daniel 
was to deed Boyd one-half the land, 800 acres. The other one-half of the taxes were to be paid by Gus 
Daniel. Gus Daniel did procure a deed from his father, and had it recorded, and moved upon the land. 
When the first taxes became due he sent to Boyd, and requested him to pay his one-half of the taxes, and 
Boyd refused to pay. Boyd has never paid any of the taxes. The taxes were paid by Gus Daniel. Gus 
Daniel dealt with the land as his own. In January, 1898, he sold and conveyed 800 acres of the land to his 
mother. Between January 1, 1899, and February 1st thereafter, Gus Daniel, by three separate 
conveyances, sold and conveyed to C. F. Daniel 514 acres of the land. C. F. Daniel conveyed 200 acres of 
the 514 acres to Watson Bros. At the time of these several conveyances the purchasers consulted Boyd as 
to the Gus Daniel title. He advised them that it was good. R. Harding had a judgment against Gus Daniel, 
and on December 6, 1898, W. R. Boyd, who was Harding's attorney, had an execution issued and levied 
upon the 1,600 acres of land as the property of Gus Daniel. C. F. Daniel, at the request of Gus, paid it off, 
and had the judgment transferred to him. The money was paid to Boyd. This was before C. F. Daniel 
purchased the land from Gus Daniel. There is evidence to the effect that when S. A. Daniel conveyed the 
1,600 acres to Gus Daniel he was indebted to Gus, and that the conveyance was made in settlement of 
said indebtedness. There is evidence that when Mrs. Jeffie Daniel purchased the 800 acres from Gus she 
paid value for the same out of funds received by her for the sale of a former homestead, and that she had 
no notice of the agreement between Gus Daniel and W. R. Boyd in reference to the land. The issue as to 
whether the agreement between Boyd and Gus Daniel was made, and whether it had been abandoned by 
Boyd, and whether Mrs. Daniel and C. F. Daniel had notice of it at the time of their respective purchases, 
and whether they paid value without notice of the same, were all fairly submitted to the jury. The charge 
of the learned trial judge covered every phase of the case, and was not objected to, nor were any 
additional instructions requested by appellants. The jury found in favor of the appellees on all the material 
issues, and there is evidence supporting their verdict. We conclude that the court did not err in overruling 
the intervener's motion for new trial. Finding no reversible error in the record, the judgment is affirmed.