Another v. Another
| Decision Date | 01 January 1851 |
| Citation | 6 Tex. 137 |
| Parties | BRYAN AND ANOTHER v. BRIDGE AND ANOTHER. |
| Court | Texas Supreme Court |
There can be no doubt as to the power of the District Court to quash a sheriff's return in proper cases; as where the levy and return are not in accordance with law, or where the facts stated in the return show that there was in fact no levy.
It is essential to the validity of a levy on personal property that the officer should make seizure or take actual possession of the goods. He must not only have a view of the property, but he must assert his title to it by such acts as would subject him to trespass were it not for the process. (Note 21.)
The plaintiff in execution has no right, in any event, to point out property where the execution is issued to sell without appraisement. But the sheriff may, after the defendant has failed to point out, adopt the plaintiff's designation. (Note 22.)
A valid levy must be disposed of before other property can be taken in satisfaction of the execution.
Where the sale is with appraisement, the defendant and the plaintiff have distinct rights of pointing out property; the defendant on the first two, and the plaintiff on the succeeding levies; and the levy must be based upon the act of the party who has the right to point out, or it may be annulled.
Where execution is issued to sell without appraisement, and the defendant fails to point out, the sheriff cannot call upon the plaintiff to point out, but must use his own judgment.
The sheriff has no right to require a bond of indemnity from the plaintiff in execution before selling real estate.
Appeal from Galveston. Motion by the appellees, who were plaintiffs in the court below, to quash the sheriff's return of an execution. The return was as follows:
“Received July 3, 1847, and executed July 14, 1847, by levying upon and advertising for sale for cash without appraisement, on the first Monday in August next, between the hours prescribed by law, by advertisements posted in three of the most public places in the county, to wit, at the court-house door, at the Tremont, and at the Verandah, all the right, title, and interest of the defendants or either of them in and to a certain negro man named Philip Lansing; at the instance of the counsel of William Bryan, and of the defendants in this execution, not having time to advertise for the August sale day, the advertisements were taken down and readvertised on the 11th day of August, 1847, for sale on the first Tuesday in September, as the law directs; which levy and advertisement was made at the suggestion of the defendants, without taking the said negro into custody, he not having been pointed out and delivered to me except by name--intending on the day of sale to require them to produce the negro--and informing them, the defendants, at the time of indorsing the levy, that I should require of them a bond of indemnity before I should proceed to sell said negro, being of the opinion that the aforesaid Bryan had no title to him; but being advised I had no right to require indemnity of the defendants, I intended before proceeding to sell to require the plaintiffs to execute a bond of indemnity to me; but previous to said day of sale said negro was removed from my county, as I have reason to believe, to one James Lansing, who is, I am informed, the only legal owner of the said slave; and subsequently, viz, on the 9th day of October, 1847, I called on the defendants for a further levy, but they having neglected and refused to point out, and not knowing of any personal property belonging to the defendants, the plaintiffs' counsel directed me on the 12th day of October, 1847, to levy upon all the right, title, and interest of William Bryan in and to the property hereinafter described; and upon the 12th day of October, 1847, I proceeded to levy upon and advertise for sale on the first Tuesday of November, 1847, as the law directs, for cash, without appraisement, all the right, title, and interest of William Bryan in and to that certain tract or parcel of land situated on Galveston island, being a portion of a tract of land granted by the Republic of Texas to Levi Jones and Edward Hall, and more particularly described by the commissioner appointed to divide the said land between the parties aforesaid as section number three; but on Tuesday one Ebenezer Allen notified me that he was the owner of the section of land above described, and the records of the county not showing any title to have existed in William Bryan at any time, I called on Jonas Butler, plaintiffs' counsel, for a bond of indemnity, informing him that I would abandon the levy and not sell without such bond, which he having refused to give, the parties in interest were notified through their counsel that the levy was abandoned, and that there would be no sale, and execution returned accordingly, November 3, 1847.
P. BRYAN, Sheriff G. C.”
The plaintiff's motion to quash was on the grounds “that the return is irregular and insufficient, and that so much of said return as relates to a negro man named Philip Lansing is superfluous and no legal return; and the whole of the said return is illegal, invalid, and insufficient, and only tends to embarrass the plaintiff's execution, and for such amendments and relief as the nature of their case may require.”
The motion was sustained, and the defendants in the execution appealed.
E. Allen and L. Sherwood, for appellants.
I. It is contended that a District Court has no right to quash the return of a sheriff in any case. Where it appears he has levied on
property, he must expose the property for sale unless replevied.
II. The levying upon property sufficient to satisfy the execution is a satisfaction of it, notwithstanding the sheriff may lose the property by his negligence.
A sheriff would, on motion, be allowed to amend his return so as to make it correspond with the facts; but the court cannot, on motion, change his return from a levy on property to a return of nulla bona. The most the court could do when property had been levied on and run off would be to award a venditioni exponas.
The defendant Bryan had a right to contend that property of his sufficient to satisfy the execution had been levied upon, and it is not seen on what ground or principle the court below would be permitted to strike out the evidence of a levy having been made, and more especially on the motion of the plaintiffs in the execution, when the defendants did not ask it.
The question whether property had been levied on sufficient to satisfy the execution was a question of fact; the right of the parties depended on those facts. The return of the sheriff as made was the evidence for any party affected by the return. No one had...
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