Kirkland v. Texas Express Co.

Chalmers, J., delivered the opinion of the court. The case abounds in errors. First: There was no sufficient affidavit to support the order of publication for the unknown defendants. The affidavit only states that the other parties in interest are unknown. The statute requires the further statement “ that diligent exertions have been made without success to ascertain their names.” Code 1871, § 1069. Second: The clerk of the court acted as agent of the complainant, swore to the bill, and made in his own name and on its behalf, every affidavit required in the cause. Then sitting at rules in vacation, he rendered a decree in its favor, ordering a sale of the land, and when this decree had been confirmed by the Chancellor, he acted as commissioner, made the sale, and executed deeds to the purchasers. The fact that he received no pay as agent does not affect the result. It is highly improper for any clerk to act as agent for a party litigant in his court, and doubly so for the clerk of a Chancery Court in this State upon whom are devolved by the statute quasi judicial functions as to many official acts. Third: There was no legal proof whatever in support of the allegations of the bill. The solicitor who prepared it, filed his own ex parte affidavit that he knew most of the land involved, 320 and that in his opinion it could not be divided in kind without impairing its value, and, upon no other showing than this, more than a thousand acres of land were ordered to be sold. The Act of Feb. 25, 1875 (Acts 1875, p. 119), dispenses with the necessity of the appointment of commissioners as provided by the Code of 1871 in this class of cases ; but it requires the court to act upon “ proof,” which, of course, must be made by documentary evidence or depositions taken upon notice. Fourth : The sale took place during the prevalence of the yellow-fever at adjacent places, and at a time when the entire county in which it was made was under a rigid quarantine by which all the parties in interest were effectually prevented from being present. More than a thousand acres of land were sold for two hundred and twenty-one dollars, three fourths of which was bought by the complainant for one hundred and sixty-six dollars. In view of the circumstances under which it was made and the price realized, this sale should have been set aside. The decree of confirmation, the decree of sale, and all precedent interlocutory orders are reversed, and the cause is remanded, with leave to the complainant to proceed as he may be advised, the complainant to pay the costs in both courts. Decree accordingly.