There is authority for this contention in many of the older cases. ( Jones v. Caswell, 3 Johns. Cas. 29; Doolin v. Ward, 6 Johns. 194; Wilbur v. How, 8 id. 444; Thompson v. Davies, 13 id. 112; 1 Story's Eq. Juris. § 293.) But the rule applied in these cases has been very materially modified by the later decisions of the courts, and it is now settled that agreements between two or more persons that all but one shall refrain from bidding, and permitting that one to become the purchaser, are not necessarily and under all circumstances void. They may be entered into for a lawful purpose and from honest motives, and in such cases will be upheld, and they will not vitiate the purchase or necessarily destroy the completed contracts to which they refer and in respect to which they are made. ( People v. Stephens, 71 N.Y. 527-546; Marsh v. Russell, 66 id. 288; Marie v. Garrison, 83 id. 14-28; Myers v. Dorman, 34 Hun, 115; Kearney v. Taylor, 15 How. [U.S.] 494; Wicker v. Hoppock, 6 Wall. 94; Phippen v. Stickney, 3 Metc. 384; Maffat v. Ijams, 103 Penn. 266; Garrett v. Moss, 20 Ill. 549; N Bk. of Metropolis v. Sprague, 20 N.J. Eq. 159; In re Carew, 26 Beav. 187.)

The rule is universal that agreements which, in their necessary operation upon the action of the parties, tend to restrain their natural rivalry and competition, and thus to result in the disadvantage of the public or third parties, are against the principle of sound public policy, and are void. Gulick v. Ward, 10 N.J.Law, 87, 91; Swan v. Chorpenning, 20 Cal. 182, 185; Hannah V. Fife, 27 Mich. 172, 180; Weld V. Lancaster, 56 Me. 453, 457; Noyes V. Day, 14 Vt. 384; Gibbs V. Smith, 115 Mass. 592; Doolin V. Ward, 6 Johns. 194; Wilbur v. How, 8 Johns. 444; Thompson v. Davies, 13 Johns. 112; Kelly V. Devlin, 58 How.Prac. 487; Atcheson V. Mallon, 43 N.Y. 147; Hunter v. Pfeiffer, 108 Ind. 197, 200, 9 N.E. 124; King v. Winants, 71 N.C. 469, 474; Durfee V. Moran, 57 Mo. 374, 379; Lawnin V. Bradley, 13 Mo.App. 361; Engelman V. Skrainka, 14 Mo.App. 438; Woodruff V. Berry, 40 Ark. 252, 267; Hyer V. Traction Co., 80 F. 839, 844. Do the facts and circumstances of this case bring it within this general rule? Can this case, consistently with the reasoning of authorities, be excepted from it? Does it infringe in any manner upon any principle of public policy?

SHANKLAND, J. If the arrangement which Dean professes to have made with the defendant, to bid off the property in question for the plaintiff, also included an agreement or understanding that Dean, or any other person, should abstain from bidding at the sale, the whole agreement would be adjudged void, on grounds of public policy; and no action could be sustained to enforce it. ( Wilber v. How, 8 John. 444; Jones v. Caswell, 3 John. Cas. 29; Thompson v. Davies, 13 John. 112; Doolin v. Ward, 6 id. 194.) But the testimony of Dean was not sufficiently explicit on this point, to warrant the court in granting a nonsuit when that motion was made; and although there was sufficient disclosed by him to have required the judge to have submitted the question to the jury, if he had been asked to do so, yet, as the defendant failed to make that request, we can not reverse for that cause.

" A number of authorities were cited to sustain the opinion of the court, and it has since been cited many times with approval. Roy v. Whitaker, 92 Tex. 346, 48 S.W. 892, 49 S.W. 367; Boyd v. Ghent, 93 Tex. 543, 57 S.W. 25; Hill v. Osborne, 60 Tex. 390; Hollingsworth v. Davis, 62 Tex. 438; Hinzie v. Robinson, 21 Tex. Civ. App. 9, 50 S.W. 635; Davies v. Thompson, 50 S.W. 1062; Barrett v. Eastham, 28 Tex. Civ. App. 189, 67 S.W. 198. In the case of Jones v. Jones, 15 Tex. 143, the court, through Chief Justice Hemphill, discussed the powers and authority of the surviving husband over the community estate and said: "As survivor he had competent authority to discharge the debts of the partnership; and whether the discharge of debts, or any act which he might lawfully do as survivor, be done in his own name simply, or in his name as survivor, is immaterial.

Being a general verdict, it includes the finding in favor of defendants of every material fact well pleaded. Wells v. Barnett, 7 Tex. 585; Smith v. Johnson, 8 Tex. 418 [ 8 Tex. 418]; Hamilton v. Rice, 15 Tex. 382; Davies v. Thompson, 92 Tex. 392. An inspection of the pleadings reveals that it is stated in the petition and answer that a will had been made by John A. Ackermann and duly probated after his death, Albert Ackermann being executor.