Bassham v. Evans

• Citation: 216 S.W. 446
• Decision Date: 12 November 1919
• Docket Number: (No. 1566.)
• Parties: BASSHAM et al. v. EVANS.
• Court: Court of Appeals of Texas

Page 446

216 S.W. 446

BASSHAM et al. v. EVANS.

(No. 1566.)

Court of Civil Appeals of Texas. Amarillo.

November 12, 1919.

Appeal from District Court, Terry County; W. R. Spencer, Judge.

Action by Vard Evans against W. B. Bassham and others. Judgment for plaintiff, and defendants appeal. Reversed.

G. E. Lockhart, of Tahoka, for appellants.

Percy Spencer, of Lubbock, for appellee.

HUFF, C. J.

This is an appeal from a judgment in favor of appellee, Evans, against W. B. and T. F. Bassham and P. B. Brothers, for the sum of $1,500. The cause of action set up by Evans against the defendants is, substantially: That one C. C. Van Zandt, on February 1, 1918, purchased from W. B. Bassham lot 15, block 22, in the town of Brownsfield, together with certain articles of furniture then in use as a rooming house. That Van Zandt, as part of the consideration, executed 69 notes, of $25 each, due one on the 1st of each month, and consecutively thereafter, with interest from date at the rate of 8 per cent. per annum. That Bassham executed his warranty deed to Van Zandt, conveying the lot, therein reciting a cash consideration of $275, and the execution of the 69 notes. Thereafter, on the 28th day of March, 1918, the appellee, Vard Evans, with his brother, Jim Evans, purchased the lot, paying a cash consideration of $300, and assumed to pay 68 of the notes executed by Van Zandt, and that Van Zandt executed his warranty deed to the lots, reciting the consideration therein as above stated. That soon thereafter appellee was drafted in to the army of the United States of America, and was in the military service as that term is defined in the "Soldiers' and Sailors' Civil Relief Act" (Act March 8, 1918, c. 20, 40 Stat. 440 [U. S. Comp. St. §§ 3078¼a-3078¼ss]), at the times of the transactions thereafter set out and alleged. "Your plaintiff would also show to the court that the rights of this plaintiff in and to said property came within the meaning of a contract for the purchase of real and personal property, as used in said act." That about the 24th day of July, 1918, the appellants conspired to eject the appellee and did eject him from said property. That, although W. B. Bassham knew appellee was the owner of an interest in the property and in the military service, he attempted to exercise the right of option expressed in the notes, to declare all of them due on account of the nonpayment of certain installments due and which fell due while appellee was in military service, and instituted suit in the district court of Terry county against the said C. C. Van Zandt, the maker of said notes, and one M. L. Evans, the father of appellee, who was in possession of the premises, and asking for a personal judgment against Van Zandt upon the last 66 notes, principal, interest, and attorney's fees, and to foreclose the vendor's lien thereon. That on the 29th day of July, 1918, W. B. Bassham made application to the clerk of that court for a writ of sequestration, and W. B. Bassham, joined by T. F. Bassham and P. B. Brothers, made and filed with the clerk a bond for sequestration and instructed the clerk to issue the writ of sequestration, which was issued, commanding the sheriff to seize the property and on the 30th day of July, 1918, caused the sheriff to seize and take possession thereof. That the sheriff held the property about 10 days, whereupon the appellants, in furtherance of their conspiracy to eject appellee, made and filed with the sheriff a replevy bond for said property, whereupon all of the property was delivered to W. B. Bassham, who has since about August 10, 1918, been in possession, enjoying the fruits, benefits, and revenues thereof. At the time of the institution of the suit and until the ejection, appellee and Jim Evans, his co-owner, were in possession of the property in the following manner:

"The mother and father of the said Vard Evans, your plaintiff, who were and are dependent upon him for support, were occupying said premises as a home and renting out certain rooms therein as a means for their support, and your plaintiff had in the building on said premises his trunk with his clothes therein, and other articles of personal property. That your plaintiff and his said mother and father were forcibly thrown out of said house and placed into the streets. That all of the actions and proceedings hereinabove set out were in this honorable court, and the papers in said cause are on file in the office of the clerk hereof and are hereby specially referred to and made a part hereof. That all of such actions are and were in gross violation of the right of your plaintiff, and were nothing less than an aggravated and willful and gross violation of the act of the Congress of the United States of America, enacted for the purpose of enabling the United States the more successfully to prosecute and carry on the war with Germany and her allies, and in gross violation of the protection thereby extended to the soldiers engaged in the service of the United States of America, and without any lawful right whatever.

"Your plaintiff would show to the court that he had paid the sum of $400 for said property, at the time of said unlawful ejection, and that the reasonable rental value of the said premises from the 10th day of August, A. D. 1919, is $35 per month.

"Your plaintiff would further show to the court that, on account of the fact that the United States government was behind with his pay, he was unable to meet the installments due upon said contract of purchase, at the time of said ejectment.

"Your plaintiff would show to the court that on account of the humiliation of having his dependent mother and father, each of whom are in feeble health and necessitous circumstances, thrown out in the streets and without a place to live in comfort and decency, while he was in the service of his country, he has suffered mental distress, and on account of his being deprived of the use of the said building for his said mother and father during said term he has been damaged in the sum equal to the rental value thereof, and on account of the unlawful eviction he has been damaged in the sum paid upon said premises, all of such damages being in the sum of $5,000, for which amount he sues. Wherefore, plaintiff prays that the defendants be cited to appear and answer this petition, and that on the trial hereof he have judgment for his damages, interest, and costs, and for such other and further relief, in law or equity, to which he may be entitled, and for this he will ever pray."

The first assignment is based on the action of the court in overruling the general exception. The appellants present three propositions thereunder, to the effect: (1) That this suit could not be maintained for the wrongful issuance and levy of the sequestration without the allegation that appellant was a party to the suit out of which it was issued. (2) The petition should also allege that the grounds set out in the affidavit for sequestration were untrue. (3) The exception should have been sustained as the petition shows the obligation of appellee was made subsequent to the passage and approval of the act referred to in the petition.

The sequestration proceedings and the issuance and levy of the writ on property, the title to which and possession of which is in a person not a party to the proceeding out of which it issued, is no protection to those using the writ to obtain possession of the property. It is as much a trespass on the rights of such third persons as if no writ had been issued. When such third person sues for damages or for redress for the invasion of his rights, the sequestration proceedings will not be a defense to such suit, much less a justification. If appellants desired to take the property out of appellee's possession and to foreclose his rights, they should have made him a party and have made the necessary affidavit charging him with the alleged wrong, and also indemnified him by making a bond, payable to him in case the writ was wrongfully sued out, and levied upon his property. The appellee, not being a party to the original suitor sequestration, could not have replevied the property under article 7103, R. C. S., providing that when property has been sequestrated the defendant therein may replevy by giving bond. Lane v. Kempner, 184 S. W. 1091; Vickrey v. Griffin, 154 S. W. 1057; Lang v. Dougherty, 74 Tex. 226, 12 S. W. 29. Our Supreme Court, in the case of Vickery v. Crawford, 93 Tex. 373, 55 S. W. 560, 49 L. R. A. 773, 77 Am. St. Rep. 891, held that a sequestration writ did not protect a sheriff in taking property from the possession of the owner who is not a party to the proceeding. In discussing that question, the court said:

"The history of our legislation shows that it was never allowable to take the property of a citizen from his possession without a proper proceeding against him, in which security was given for damages and costs which might result."

Again it was said, after reviewing former acts of the Legislature:

"The plain purpose of these provisions was to require a suit with a verified petition against, and a bond to, the person whose property was to be seized, before its seizure under any writ was authorized. * * * While a sworn petition may not be necessary, a suit is required, with an affidavit and bond which would meet the purposes of the former law. The sequestration law requires no bond to secure any person but the defendant. It authorizes the defendant, and no one else in the first instance, to give a replevy bond, and retain the property; and, if he fails to do so, it authorizes the plaintiff to replevy. It provides for a sale of the property, if it be perishable, in case the defendant does not replevy. There is no provision whatever in this state for the protection of the rights of any but the parties to the suit. If it be true that the officer is authorized to invade the possession of a stranger to the action, and take...