number of the suit in which it was rendered, [ and the same was admitted over appellant's the court in which it was rendered, the prin- objection, a duly certified copy of a writ of cipal amount thereof, the rate of interest it execution which was issued out of the county bore, and the costs of suit. Upon inspection court of Gregg county on the judgment obof the record, we also find that in the judg-tained by appellee against said Willis Rathment obtained by appellee against Willis er, as before shown, and which writ was datRather in the county court of Gregg county ed December 3, 1909. Appellant's second asit was recited that a writ of attachment had signment of error complains of this action theretofore been issued in the cause and of the court. His only proposition under levied upon a tract of land in Gregg county this assignment is, substantially, that it was (the judgment describing the tract), but no error to admit such writ, for the reason that further mention in the judgment was made no judgment upon which it had issued had of such attachment, Now, in this connection, been properly admitted in evidence, and that appellant contends that the failure on the the writ, therefore, became immaterial. Our part of appellee to mention in his petition disposition of the second assignment in efin this case the fact that an attachment had fect overrules this assignment, since we have been issued and levied, as shown by the held that the judgment was properly admitjudgment of said county court, there was ted in evidence. a lack of description of such judgment in [2] By the third assignment of error apappellee's petition in this case, and that his pellant contends, substantially, that the trial objection on that ground should be sustained, court erroneously admitted, over his objecand appellee denied the right to introduce tion, the abstract of judgment which had such judgment. Appellant made a number been filed, indexed, and recorded in Rusk of objections to the introduction of the judgment, but this is the only proposition following his assignment. We overrule the assignment, for the reason that in this case appellee was claiming no right under, and was not in any manner asserting a cause of action based upon, any writ of attachment that was issued in the suit in the county court of Gregg county, and such attachment proceeding formed no part of his cause of action as reflected by his petition in this case, and therefore we hold that he was not required to plead the fact that any attachment had ever issued in connection with the suit in Gregg county court, and further that his failure to do so constituted no misdescription of the judgment relied upon in this case, and could not have constituted any surprisc, and his failure to mention in his petition in this case the issuance of the writ of attachment, and the proceedings under such writ of attachment, whatever they were, became immaterial in so far as appellee's cause of action here was concerned. It appeared, however, on the trial, that while the writ of attachment had been issued, as shown by the judgment, no benefit had ever accrued to appellee in consequence thereof, and that the land levied upon was never sold under such writ, but that in fact the attachment had been withdrawn, for the reason that the land upon which it was sought to be levied did not in fact belong to Willis Rather, and it appeared fully from the testimony that nothing had ever been collected by appellee on said judgment against Rather, but the whole amount thereof, at the date of the judgment in this cause, was still due and unpaid, and it was affirmatively alleged by appellee that no part of said judgment had ever been paid. The assignment is overruled. county. The proposition under this assignment is, substantially, that such action of the court was error, because the abstract of judgment complained of did not sufficiently identify the judgment obtained by appellee in the county court of Gregg county against Willis Rather, so as to constitute a lien, as claimed by appellee on the tract of land in that county. Upon inspection of the record we find that this abstract of judgment contained the names of the parties to the suit in full, its date, the number of the suit, the principal amount of the judgment, the rate of interest it bore, the court in which it was rendered, and showed the total amount due thereon at the time the same was filed in Gregg county, and we therefore hold that this abstract sufficiently identified the judgment relied on by appellee, and that its filing, proper indexing, and recording in Rusk county constituted a lien, under the statute, upon the tract of land in that county to secure the payment of appellee's judgment, as claimed in his petition in this case. The real complaint in this connection by appellant is that the abstract complained of does not affirmatively show that there were no, credits to which the judgment was entitled. We do not understand that the statute in question requires the abstract of judgment to affirmatively show, or to state in so many words, that there were no credits to which the judgment was entitled in order to give a lien, as was here sought; but if the abstract shows correctly the names of the parties to the suit, the number of the suit, the court in which the judgment was rendered, the date of the judgment, the amount thereof, the rate of interest it bore, and the costs of suit, and further shows the total amount due, the requirements of the statute are fully met, and lien attaches. Article On the trial appellee offered in evidence, 5612, Vernon's Sayles' Civil Statutes. It is (218 S. W.) not appellant's contention in this connection that there were any credits in fact which ought to have been shown by the abstract, and we have no such question before us. The assignment is overruled. By the fourth assignment appellant complains that the trial court erred in admitting in evidence, over his objection, a duly certified copy of the entries made on the execution docket of the county court of Gregg county in the cause in which appellee recovered said judgment against Willis Rather. The only proposition under this assignment is, substantially, that there was no properly admitted judgment before the court, and that, therefore, these entries appearing on the execution docket became immaterial and had no place in the record. We have already disposed of the contention that there was no properly admitted judgment before the court, and this assignment, is therefore overruled. There is no merit in the next assignment of error found in appellant's brief, which is denominated seventh assignment, and the same is overruled without further comment. The next assignment, denominated the eighth, complains of the action of the trial court in admitting, over appellant's objection, the original abstract of judgment made in cause No. 701, which was the cause in which appellee recovered the judgment aforesaid against Willis Rather in the county court of Gregg county, and which original abstract was issued by the clerk of the coun ty court of that county on the 3d of November, 1909. The contention under this assignment is, in effect, that in a suit by a creditor of an estate to establish a rejected claim against an administrator, based on the judgment, and to establish a lien claimed to have been fixed by the abstract of judgment, which was alleged to be for the sum of $947 principal of the judgment, and $11.75 as costs of the suit, and it being further alleged that such judgment bears interest from its date at the rate of 6 per cent. per annum, and the plaintiff offering such original abstract in support of such allegations, which shows the amount due to be $958.75 and 6 per cent. interest thereon from the date of the judgment, that there was shown to be a fatal variance between the allegations of plaintiff and the proof as made by the abstract. As stated above, the abstract of judgment showed that the principal amount recovered in the cause in the county court of Gregg county was $947, and also showed that such judgment bore interest at the rate of 6 per cent. per annum from its date, and then further showed that the amount of costs of that suit was $11.75. We think it is clear, without further comment, that there was no variance, as here claimed by appellant. The assignment is overruled. This disposes of all assignments brought forward in appellant's brief, and, finding no error in the judgment for which the case should be reversed, it will be affirmed; and it is so ordered. WAGNER et ux. v. HUDLER. (No. 6325.) (Court of Civil Appeals of Texas. San Antonio. Feb. 25, 1920. On Motion for Rehearing, March 31, 1920.) 251(2) 1. EXECUTION IRREGULARITIES HELD TO JUSTIFY SETTING ASIDE OF SALE FOR INADEQUATE PRICE. Execution sale of property worth $3,000 and subject to taxes amounting to $264 for $625 will be set aside, where the order of sale was for the full amount of the judgment with costs, though the amount had been reduced by payments, and the order of sale issued in the name of the original judgment creditor, though an assignment was shown on the margin of the judgment. 2. EXECUTION 256(2)-PURCHASER'S BELIEF AS TO AMOUNT OF TAXES IMMATERIAL IN DE TERMINING ADEQUACY OF BID. That the purchaser of property at an execution sale thought the back taxes amounted to more than they did was immaterial, in a suit to set aside the sale, in determining whether the property was sacrificed for an inadequate sum. 3. EXECUTION 245—NEGLIGENCE OF HUS BAND NOT GROUND FOR REFUSING TO SET ASIDE SALE OF HOMESTEAD WHERE WIFE NOT NEGLIGENT. Where an owner of property sold under execution presented to the sheriff a note from the judgment creditor and asked that the sale be stopped, and was told that the sale could only be stopped by the judgment creditor's attorney and that the sale would be had at 11 o'clock unless the attorney stopped it, the owner's negligence in failing to notify the attorney of the sheriff's intention to sell did not prevent the setting aside of the sale, where the property was the homestead and the wife had been given notice of the sale and the deed undertook to convey her interest, as her rights could not be affected by her husband's acts. 4. EXECUTION 244-JUDGMENT CREDITOR ENTITLED TO HAVE IRREGULAR SALE FOR INADEQUATE PRICE SET ASIDE. A judgment creditor was entitled to have an execution sale for an inadequate price set aside for defects and irregularities, where her attorney had told the sheriff that he would be present, but the sheriff, knowing that an effort to settle was being made, and without ascertaining why the attorney failed to appear, sold the property during a heavy rain within a few minutes after the hour fixed for the sale, and where the attorney promptly protested before the purchaser had paid the money or a deed had been made. debtor, and it is his duty to secure the best results for both. On Motion for Rehearing. 7. EXECUTION 256(1)-RENTS NOT RECOVERABLE IN SUIT TO SET ASIDE SALE WITHOUT EVIDENCE FIXING AMOUNT. In a suit to set aside an execution sale, the rents for the time intervening between the date the trial cannot be recovered, where the evithe purchaser took possession and the date of dence is of such uncertain character as to furnish no basis for fixing the amount. 8. APPEAL AND ERROR 1116—RENTS AC CRUING AFTER TRIAL OF SUIT TO SET ASIDE EXECUTION SALE CANNOT BE AWARDED BY APPELLATE COURT. Rents accruing after trial of a suit to set aside an execution sale, which was set aside on appeal, must be demanded in a separate suit and cannot be awarded by the appellate court. 9. EXECUTION 256(1) - IN SUIT TO ASIDE SALE, COURT MAY REQUIRE SHERIFF TO PAY MONEY INTO COURT. SET 5. EXECUTION 221-SALE MAY BE MADE AT aside such sale and deed. Irregularities in ANY TIME WITHIN THE HOUR STATED IN NO TICE. An execution sale may be made at any time between 11 and 12 o'clock under a notice that it will be made at 11 o'clock. the order of sale, coupled with gross inade- 6. EXECUTION 226-IN CONDUCTING SALE The sheriff in selling property under execution is merely the agent of the creditor and In stating the facts found by the trial court, we will copy most of the findings; but those relating to value contain unnecessary For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (218 S.W.) matter, and only the material portions there- [ amount of his bid to the sheriff, and received of will be copied. "Findings of Fact. "(1) Miss M. E. Cooley, intervener, owned a judgment against defendants P. F. Wagner and wife, Leila M. Wagner. This judgment had been rendered in the district court of Victoria county at its spring term, 1910, in the suit of Joseph Fagan v. P. F. Wagner, Leila M. Wagner, and W. V. Nothnagel, and foreclosed a mortgage lien in said Fagan's favor on lot No. 4, in block No. 203, in the city of Victoria. "(2) The said judgment was for $2,539.50 and was reduced by payment to $2,300, when on June 3, 1910, it then amounting to $2,300, same was transferred by written transfer, for value, to the present intervener by said Fagan. The costs in said suit, amounting to $13.80, were paid by said Wagner at the time of said transfer from Fagan to Miss Cooley. Said transfer was duly noted on the margin of the court minutes where said judgment was recorded. "(3) In the year 1914 said Fagan died. “(4) On January 13, 1919, said judgment for $2,300 was a live, valid, and subsisting judgment, and on said date the present intervener had, through her attorney, an order of sale issued thereon. No affidavit of the death of said Fagan was filed. The order of sale was issued in the name of Fagan and for the original amount of said judgment, $2,539.50, and for the costs of suit, which had been paid by the Wagners. Intervener's attorney was at said time suffering from weakened eyesight produced by influenza which he mentioned to the district clerk at the time the clerk was issuing said order of sale. "(5) Intervener's attorney delivered said order of sale to the sheriff of Victoria county, and the sheriff made the levy. Said attorney prepared and had sent out the notices as required by law and notices were posted. About four or five days before the day of sale, intervener's attorney told the sheriff that said sale would come off and that he, said attorney, would be present. "(6) On February 4, 1919, the day of sale, at about 9:30 o'clock a. m., P. F. Wagner appeared at the sheriff's office, called the sheriff out into the hall, and told him that he had an order stopping the sale, at the same time exhibiting to him the note in evidence from Miss Cooley. The sheriff told him that said sale could only be stopped by Mr. Carsner, attorney for Miss Cooley, and told him to so tell Mr. Carsner; that if he did not receive notice from Mr. Carsner to stop the sale it would take place at 11 o'clock that morning, and told him to so tell Mr. Carsner. Wagner went immediately to Carsner's office, but did not tell said Carsner what the sheriff had said. "(7) A few minutes after 11 o'clock a. m., on February 4, 1919, the sheriff sold said property as commanded to do by said order of sale. At said sale there were four bids, and the property was struck off to L. O. Hudler, the defendant, for $625. At said sale there were present, besides defendant, L. O. Hudler, Hunt Stoner, Frank Polka, John Thomas, E. W. Klein, Dr. Franks, D. C. Holzheuser, and possibly one or two others. Just before the sale was closed, S. M. Bailey arrived. He had time to bid on said property after he got there. Hudler paid the deed from the sheriff. At no time prior to said sale did the sheriff receive notice from intervener or her attorney not to have said sale, or to delay or postpone same. It rained almost continuously on said morning, and espe cially hard about 11 o'clock. During the morning of the day on which said sheriff's sale was made, the sheriff remained in his office at the courthouse from about 9:30 o'clock a. m. until the time said sale was made, and Mr. C. C. Carsner, attorney for intervener, was in his office, in Victoria, transacting business from about 10 o'clock a. m. until after 11 a. m. on said date. There were telephone connections in operation during said morning between the office of the sheriff and the office of the attorney for intervener. "(8) There had been no agreement or understanding between the sheriff and defendant L. O. Hudler with reference to the latter bidding on said property. Neither the sheriff nor any one else knew that Hudler intended to bid on the property before the sale. * "(10) I find that the reasonable market value of said property on February 4, 1919, was about $3,000. * At the time of the sale there was due as delinquent state, county, and city taxes on said property about $264. The Wagners had been sued on two or more occasions for delinquent taxes, and Hudler, the purchaser, knew of this, and knew there were back taxes against said property. He thought at the time of his purchase that the amount of back taxes was greater than it was." The court's conclusion of law is as follows: "Considering the character and condition of the property, and the tax liens on same, I find that the price paid is not so inadequate as to justify a court in setting aside said sale. There were no irregularities about said sale that tend to make same void or voidable; and judgment is rendered that plaintiff and intervener take nothing, and that defendant go hence without day and recover his costs." [1, 2] It appears Fagan, the plaintiff in the judgment, was dead; that the judgment was owned by Miss Cooley, and this was disclosed by notation on the margin thereof referring to written transfer; that the judgment had been reduced to $2,300 and the costs paid, but, notwithstanding this, the order of sale was issued in the name of Fagan, and was for the full amount of the judgment, $2,539.50, and for costs of suit, $13.80. It did not mention Miss Cooley, and required the officer to collect $2,539.50, together with interest thereon from May 27, 1910, at the rate of 8 per cent. per annum, and said costs of suit. The amount was excessive to the extent of $239.50 and interest thereon for nearly nine years at 8 per cent. per annum, and to the extent of certain costs. The price obtained at the sale was grossly inadequate, for the court found the premises were worth $3,000, and that the taxes against same amounted to $264, leaving the net value $2,736, while Hudler bid only $625. The fact that Hud ler thought the back taxes amounted to ing hard. The attorney was busy in his office more than they did cannot affect the issue trying to reach a settlement with Wagner, whether in fact the property was sacrificed and had no notice of the statement by the for an inadequate sum. The irregularities sheriff to Wagner that he would sell at 11 above detailed were such as are calculated to o'clock. When a settlement had been agreed keep prudent persons from bidding and to on which was shortly after 11 o'clock, and prevent the property from bringing some- Wagner had gone to the bank for the money, thing like its reasonable value. These irreg- the attorney telephoned the sheriff and learnularities are not attributable to defendants ed that the sale had taken place. The purin execution. The price obtained was grossly inadequate under the finding by the court, which, in view of all the testimony, was very favorable to defendant. The defects and irregularities found in the process under consideration, coupled with gross inadequacy of price, are such as to require that the sale be set aside at the suit of the owners of the property, in the absence of conduct on their part which would be sufficient to estop them from attacking the sale. Irvin v. Ferguson, 83 Tex. 491, 18 S. W. 820; Gunter v. Cobb, 82 Tex. 606, 17 S. W. 848; White v. Taylor, 46 Tex. Civ. App. 471, 102 S. W. 747; Graham v. Cansler, 191 S. W. 856; Moore v. Miller, 155 S. W. 575. chaser had not paid the money nor had a deed been made. The attorney protested to the sheriff and the purchaser. Afterwards, the money was paid and a deed executed. The money remained in the hands of the sheriff. The sheriff could have telephoned the attorney and ascertained what prospect there was of the settlement being effected, but instead of doing so he sold the property during a heavy rain in the absence of the attorney and the Wagners. [5, 6] The court did not find on the issue made by the testimony of the attorney and the sheriff with reference to whether or not the attorney said he intended to bid on the property, nor does it appear that he was request We therefore hold that the conclusion of ed to make an additional finding on the point. law filed by the trial court is erroneous. [3] Appellee seeks to justify the judgment on grounds not relied on by the trial court. He asserts that the act of Wagner in failing to notify Carsner, the attorney of the owner of the judgment, that the sheriff intended to sell the property at 11 o'clock, was such an act of negligence as would estop him from attacking the sale. The court did not so find as a matter of fact, nor base his judgment on the law of estoppel. Nor could any act of Wagner's affect the rights of Mrs. Wagner, who is not shown to have had any notice of the sheriff's statement or to have participated in any supposed negligence. The property was the homestead, and in fact Mrs. Wagner testified it was owned by her and not by Wagner. It is true that the execution failed to mention her as one of the parties to the suit, although this is required by article 3729, R. S. 1911, as well as a correct statement of the amount due; but the sheriff gave her notice and by his deed undertook to convey her right, title, and interest in the land. This, however, is regarded by us as immaterial, for the reason that the sheriff must have known that the purpose for which the attorney desired to be present was to protect his client's interests, which could only be accomplished by bidding on the property. The fact that the sheriff had stated to Wagner his intention of selling at 11 o'clock did not impose upon him any duty to do so. Besides, if notice has been given that a sale is to be at 11, it may be made any time between 11 and 12. Freeman on Executions, § 287. We are unable to reconcile the sheriff's actions with our conception of his duty under the circumstances, it being well established that he is merely the agent of the creditor and debtor, and that it is his duty to secure the best results for both. He acted in an arbitrary and harsh manner, and without regard for whether the property would be sacrificed or not. Under the circumstances, the court should have held that Miss Cooley had sufficient grounds to entitle her to set aside the sale. The appellee relies strongly upon the case We conclude that Wagner and wife were of South Texas Lumber Co. v. Burleson, 178 entitled to have the sale set aside. [4] We will now consider the case made by the owner of the judgment. Her attorney had stated to the sheriff a few days before the sale that it would come off and he would be present. On the morning of the day set for the sale, it rained almost continuously during the morning and especially hard about 11 o'clock. The sheriff knew that an effort was being made to settle the case. Without ascertaining why the attorney failed to appear, he sold the property just a few minutes after 11 o'clock, at a time when it was rain S. W. 961. It will be noticed that the opinion does not disclose the nature of the irregularities relied upon. The statements made by the court must have been made with reference to irregularities which were not calculated to prevent the property from bringing something like its reasonable value, for if taken literally it is not supported by the cases of Pearson v. Flanagan, 52 Tex. 280, and First Nat. Bank v. Land Co., 60 Tex. Civ. App. 315, 128 S. W. 436, cited in support thereof, nor by the other cases cited, for they involved collateral attacks upon execution |