the position can be successfully maintained that a court of a justice of the peace has jurisdiction to entertain a motion and set aside an execution sale of land after it has been completed and deed delivered to the purchaser. We have already said that the effect of such sale is to vest the title to the land in the purchaser if the sale is regular or only voidable. A proceeding having for its object the destruction of all the evidences of that title as well as the annulment of the title itself would be practically a suit to try title to land or remove cloud therefrom, or at least, when the ground of the motion is fraud and gross inadequacy of price, would be an appeal to the equity powers and jurisdiction of the court. Of such proceedings, whether by motion or original suit, we do not believe that justice courts have jurisdiction. They have never been regarded as "high courts of chancery," nor allowed in this state to try title to land or remove cloud from title thereto. In such cases, resort must be had to the district court of the county where the land is situated: Const. 1875, art. 5, sec. 8; art. 1198, sec. 13; Hickman v. Stewart, 69 Tex. 255, and authorities cited.

We conclude that the sale of the land to J. K. Bass was not void for that reason, nor is there any other sufficient reason shown that would render it void. Was it even voidable? The only other irregularity alleged is, that the execution for costs was issued in the names of the parties to the suit instead of the names of the officers in whose favor the costs were adjudged. This was proper, and was not even an irregularity: Freeman on Executions, sec. 21; Hudson v. Morriss, 55 Tex. 604. It will be presumed that the execution was issued with the consent of the plaintiff unless the contrary is shown: Hudson v. Morriss, 55 Tex. 604. Nothing is therefore left the defendants to avoid the sale but the gross inadequacy of the price bid and paid by Bass for the land. That alone has been repeatedly held insufficient to vacate the sale, even on direct attack, though it may be regarded as strongly indicative of fraud: 12 Am. & Eng. Ency. of Law, 235-238; Allen v. Pierson, 60 Tex. 604; Pearson v. Flanagan, 52 Tex. 280, 352. But if we concede that the sale was voidable on the ground of fraud implied from gross inadequacy of price, etc., still we think the attack made upon it by the appellees in their plea in reconvention was collateral, and ought not to have been sustained in the court below. We cannot regard that plea as an original suit or

equitable proceeding instituted directly and for the sole purpose of vacating the execution sale and sheriff's deed on the ground of fraud, to which all of the parties in interest should be made parties to the suit, though expressions of opinion may be found to that effect in some of the cases reported. Such a proceeding would be a direct attack: Freeman on Executions, sec. 310. All those interested in the sale of the land, or to be affected by the vacating of the proceedings, were not made or asked to be made parties to the suit in defendants' cross-bill. Neither the plaintiff in the execution nor the purchaser Bass was impleaded, though the sale of the entire 440 acres was declared void: Freeman on Executions, secs. 305, 306. The plaintiffs had instituted this suit as one of ejectment or trespass to try title, and that is its real character. The defendants attempted, by their cross-bill (which is in effect an independent suit), to set aside and annul certain process and the proceedings thereunder emanating from another court. The plea of reconvention is therefore not only collateral to the present suit, but is also a collateral proceeding, in so far as it seeks to invalidate and set aside the proceedings taken in pursuance of the judg ment and process of the justice court. The proper and direct remedy, supposing them to have the same right as Jones had, would have been by motion or original suit in the proper court having jurisdiction of such matters. Their actual possession of the land did not alter the case: Haskins v. Wallet, 63 Tex. 218; Freeman on Executions, sec. 310; Owen v. Navasota, 44 Tex. 517; Walet v. Haskins, 68 Tex. 423; 2 Am. St. Rep. 501. In the case of Haskins v. Wallet, 63 Tex. 218, it is said that "if we regard the present action as an action at law merely (trespass to try title), then the plaintiff cannot recover unless the sheriff's deed under which the defendants claim is absolutely void. If it be merely voidable, the court will not disregard it in a collateral proceeding." This is a correct statement of the rule, though made in a case where the attack appears to have been direct: Murchison v. White, 54 Tex. 85; Freeman on Executions, secs. 29, 309, 310, 339, 351; Ayres v. Duprey, 27 Tex. 593; 86 Am. Dec. 657; Boggess v. Howard, 40 Tex. 158.

The judgment therefore rendered in the court below is incorrect, and should be reversed and rendered as requested by the appellants. This renders it unnecessary to make any authoritative ruling on the question of laches, which has been dis

cussed by both parties, though it does not appear that the appellants interposed this defense in any way in the court below. This it seems they should have done in some mode to be entitled to the benefit of the plea of laches or of stale demand: Hensel v. Kegans, 79 Tex. 347; Bullock v. Smith, 72 Tex. 549. We are relieved also of deciding whether a proper proceeding to set aside a sale under execution and sheriff's deed to land, on the ground of irregularities and inadequacy of price, must be brought within two years, as contended by appellants, or within ten years, supposing of course that the subsequent purchaser has notice of the fraud and irregularities. It would seem that where the attack is not upon the judgment itself, but only upon the subsequent proceedings eventuating in the sale of the land, the longer period has been allowed for a direct proceeding in equity; otherwise if the judgment is sought to be reviewed and set aside, and, as a consequence, the subsequent proceedings thereunder: Murchison v. White, 54 Tex. 85; Kleinecke v. Woodward, 42 Tex. 311; Walet v. Haskins, 68 Tex. 418; 2 Am. St. Rep. 501. Deducting one year on account of the death of E. J. Jones in 1879 (there being no executor or administrator of his estate), less than ten years had intervened in legal contemplation between the date of the sale of the land and the filing of defendant's plea in reconvention: Rev. Stats., art. 3217.

For the other reasons assigned, we conclude that the judgment should be reversed and here rendered for the appellants, so as to allow them to recover of the appellees the 220 acres of land described in plaintiffs' petition, and all costs of this appeal, and those that have accrued in the district court.

EXECUTION SALES - INADEQUACY OF PRICE AS GROUND FOR SETTING ASIDE. - Gross inadequacy of price alone is not sufficient to set aside a sale under execution, unless the proceedings are tainted with fraud: Smith v. Huntoon, 134 Ill. 24; 23 Am. St. Rep. 646; Weaver v. Nugent, 72 Tex. 272; 13 Am. St. Rep. 792, and note; Swires v. Brotherline, 41 Pa. St. 135; 80 Am. Dec. 601, and note; Morisse v. Inglis, 46 N. J. Eq. 306; Collins v. Smith, 75 Wis. 392. EXECUTION SALES-COLLATERAL ATTACK ON. - An order confirming a judicial sale is not subject to collateral attack: Wilcox v. Raben, 24 Neb. 368; 8 Am. St. Rep. 207. A court of equity will not set aside a sheriff's deed in a collateral action commenced for that purpose. It must be attacked directly in the court where the judgment was rendered: Boles v. Johnson, 23 Cal. 226; 83 Am. Dec. 111, and note. An irregularity of process cannot be questioned collaterally by a stranger to a sale under execution: Durham v. Heaton, 28 Ill. 264; 81 Am. Dec. 275. A judgment creditor cannot attack a sale collaterally for irregularities: Ribelin v. Peugh, 126 Ind. 216.

EXECUTION SALES-LACHES. Several years' delay of a motion to set aside an execution sale because made at an under-value will bar relief, where the plaintiff had sufficient knowledge of the facts to put him on inquiry: Daniel v. Modawell, 22 Ala. 365; 58 Am. Dec. 260. Relief granted by courts of equity in avoiding execution sales is not limited to the period provided by statute for courts of law: Blight v. Tobin, 7 T. B. Mon. 612; 18 Am. Dec. 219.

WELSH V. MORRIS.

[81 Texas, 159.]

PARTNERSHIP-BREACH OF FIRM CONTRACT BY INDIVIDUAL MEMBER-EVIDENCE-DAMAGES. - An agreement by a partnership not to engage in business in the same town in opposition to its vendee is binding upon its members individually; and in an action against one of them for a breach of the contract, evidence of the amount of business done by him subse quently to the breach is admissible as a basis upon which to estimate damages.

JUNCTION.

PARTNERSHIP -BREACH OF FIRM CONTRACT BY INDIVIDUAL MEMBER — IN. The recovery of damages against a party for breach of a contract made by a partnership of which he was then a member is no ground for refusing an injunction against a subsequent breach of such

contract.

Standifer and Moseley, for the appellants.

W. W. Wilkins and Maughs and Peck, for the appellee.

HENRY, A. J. This suit was brought by the appellee against M. Welsh, R. W. Welsh, and N. W. Welsh, to recover damages, and to enjoin them from conducting business as undertakers in the city of Denison. The cause was tried without a jury, and a judgment was rendered in favor of the defendants R. W. Welsh and N. W. Welsh, and for the plaintiff against the defendant M. Welsh for the sum of two hundred and fifty dollars, and enjoining him from engaging in the business of an undertaker in the said city while the plaintiff should there continue to conduct such business.

Plaintiff's cause of action was based upon the following written agreement:

"DENISON CITY, TEXAS, March 13, 1885.

"To all whom it may concern:

"We have this day bargained and sold to S. B. Morris our entire stock of undertaker's goods for value received, including insurance and rent to April 1, 1885, and we further agree not to start the undertaking business in Denison City, Texas, so long as the said S. B. Morris is in the business. WELSH BROS."

AM. ST. REP., VOL XXVI. — 51

The judge filed conclusions of law and fact, which were excepted to by the defendant M. Welsh.

The record contains a statement of facts, from which it ap pears, in addition to the above agreement, that plaintiff com. menced business in the city of Denison as an undertaker on the thirteenth day of March, 1885, he having then purchased the stock of Welsh Brothers, a firm composed of M. Welsh and R. W. Welsh, as shown by said written agreement; that after he sold out, defendant M. Welsh moved to Sedalia, Missouri, where he engaged in the same business until March, 1886, at which time he returned to Denison, bringing with him a third brother, N. W. Welsh, and that the said M. and N. W. Welsh had opened an undertaking business in said city, under the firm name of Welsh Brothers; that at first M. Welsh was a partner in said business, but shortly after this suit was brought he sold his interest in it to his brother, N. W. Welsh, and about that time the firm name was changed from "Welsh Brothers" to "N. W. Welsh "; that afterward M. Welsh conducted a small furniture business in the house in which his brother was con. ducting the undertaking business, and assisted his brother in conducting the undertaking business.

Plaintiff testified that he believed that the Welshes had done about three thousand dollars' worth of business since they reopened in Denison; that he, plaintiff, had cleared about twelve hundred or fifteen hundred dollars out of his business the first year after buying out Welsh Brothers, and had cleared about the same amount yearly after the Welshes resumed business in said city; that he thought M. and N. W. Welsh had cleared about fifteen hundred dollars after they resumed business.

The defendant objected to the admission of the testimony of plaintiff with regard to the value of the business transacted by the defendants, upon the ground that it was not "a proper measure of the damage sustained by the plaintiff."

We think the evidence was properly admitted. The facts stated were circumstances tending to show that plaintiff was damaged, and the amount of his damage. The fact that the parties included in their contract a stipulation that the Welsh Brothers should not conduct business while the plaintiff was engaged in it shows that they believed the conditions to be such as to make it of advantage to the plaintiff that the Welsh Brothers should desist from it. It is reasonable to conclude that the disadvantage to plaintiff of their conducting