Brown v. Lane

• Decision Date: 01 January 1857
• Citation: Brown v. Lane, 19 Tex. 203 (Tex. 1857)
• Parties: TAYLOR BROWN v. JAMES F. LANE AND OTHERS.
• Court: Texas Supreme Court

19 Tex. 203

TAYLOR BROWN

v.JAMES F. LANE AND OTHERS.

Supreme Court of Texas.

1857.

This court has heretofore determined, in accordance with the current of authorities, that a valid levy and sale of an undivided interest of a part owner of slaves cannot be made without the slaves being present at the time of the levy and sale, or in some way under the control of the sheriff.

Where a sheriff's sale of the interest of the defendant in execution in certain slaves was void on account of the failure of the sheriff to take the slaves into his possession or have them otherwise under his control, or to have them present at the time of the sale, and it did not appear what proportion the amount bid by the purchaser bore to the fair value of the interest of the defendant in execution in said slaves; nor, except by the return of the execution satisfied, that the purchaser had paid the price bid, it was held that the purchaser was not entitled to recover from the defendant in execution the amount of the bid.

Error from Rusk. Tried below before the Hon. William W. Morris.

Suit by plaintiff in error against defendant in error to recover the undivided interest of one of the defendants, James F. Lane, in certain slaves in possession of defendants. The plaintiff claimed by purchase at sheriff's sale, under an execution in favor of Andrew J. Wills against the said James F. Lane. The levy was made upon the interest of the defendant in execution in said slaves by name, by indorsement to that effect at the sheriff's office, at the instance of the attorney of the plaintiff in execution, whilst the slaves were five miles off, in possession of defendants, where they remained, not being present at the sale, nor at any time under the sheriff's control. The validity of the sale being attacked, plaintiff amended, and claimed judgment against James F. Lane for the amount which he alleged he had paid for said interest in said slaves, and which he alleged had gone to discharge the indebtedness of the said James F. Lane to the plaintiff in execution. The sheriff's return of the execution stated that Taylor Brown bid off the property at $248, and that the execution was satisfied in full. The bid was about the amount of the execution. There was evidence tending to prove that James F. Lane owned an undivided interest in said slaves, with the other defendants, as one of the heirs of Robert L. Lane. There was no evidence showing that the price bid was or was not the fair value of the interest of the defendant in execution; but it appeared that one of the defendants claimed to have purchased the interest of said James F., and forbade the sale.

The court instructed the jury to the effect that the levy and sale, under the circumstances, conveyed no title; and refused to give the following instruction, asked by plaintiff:

That if they believe, from the evidence, that there was a judgment and execution against James F. Lane, one of the defendants, and the plaintiff paid off and satisfied said judgment and execution, and got nothing from said defendant, in consideration thereof, they must give him a judgment against said defendant James F. Lane, for the amount so paid on said judgment by plaintiff, with interest at eight per cent. per annum from the date of said payment.

Verdict and judgment for defendants. Motion for new trial overruled, etc.

N. G. Bagley, for plaintiff in error, argued that the levy and sale were good, since to have taken manual possession of the property would have been a trespass upon the other proprietors; and to the right of plaintiff to recover back the amount paid by him, cited Henderson v. Kissam, 8 Tex. 46;Howard v. North, 5 Id. 291.

R. Smither, for defendants in error, cited against the validity of the levy and sale, Portis v. Parker, 8 Tex. 23;Bryan v. Bridge, 6 Id. 137;Converse v. McKee, 14 Id. 28; and against the recovery of the amount bid, Teas v. McDonald, 13 Tex. 31; Edmonson v. Hart, 9 Id. 554; Story's Eq. Jur. sec. 212.

ROBERTS, J.

Two questions are presented in this case:

1st. Can a sheriff make a valid levy on, and sale of, an undivided interest of a part owner of slaves, without the slaves being present at the time of the levy and sale, or in some way being under the control of the sheriff?

In accordance with the current of authorities, this court have already determined this in the negative. Converse & Co. v. McKee, 14 Tex. 20;Bryan et al. v. Bridge et al. 6 Id. 137.

The second question is, if Brown bid off the property at the sale, which was void, and paid the purchase money to the sheriff in satisfaction of the execution against James F. Lane, and did not and cannot get possession of the property under the sale, can he maintain an action against James F. Lane to recover the money, which was applied to the discharge of his debt?

In the case of Howard and Wife v. North, 5 Tex. 290, it was determined that “when an execution sale under a valid judgment is void, and the debtor brings suit to recover the property, if there be no fraud on the part of the purchaser the latter will not be compelled to restore the amount without being reimbursed the amount which he paid, and which went to discharge the judgment.” There the suit was brought by the defendants in the execution to set aside a sheriff's sale and annul his...