Cornelius v. Burford

• Decision Date: 31 October 1866
• Citation: 28 Tex. 202
• Parties: A. P. CORNELIUS v. NATHANIEL M. BURFORD.
• Court: Texas Supreme Court

28 Tex. 202

A. P. CORNELIUS

v.NATHANIEL M. BURFORD.

Supreme Court of Texas.

October, 1866.

It has been repeatedly held, and may be considered well settled, that a levy upon sufficient personal property to satisfy the execution is a satisfaction of the debt, if the property be taken from the possession of the defendant in execution. Pas. Dig. art. 3775, note 867.

The judgment creditor, after such a levy, must look for his money to the officer who made the levy; for, so far as the debtor is concerned, the debt is paid, and he is discharged from further liability on account of it. 10 Tex. 153;15 Tex. 187.

But if the levy be overreached by a prior lien, or be abandoned at the request or for the benefit of the debtor, or be defeated by his misconduct, or if he retain possession of the property, and it be not sold, then the levy is not a satisfaction of the judgment. See Pas. Dig. art. 3775, note 867, p. 620.

It was not error to refuse a charge which did not comprise all of the facts material to be considered in the determination of the issue presented by the charge, when the effect of the charge, if given, would have been to exclude from the consideration of the jury the material facts not referred to in the charge. Pas. Dig. art. 1464, note 562.

See this case for facts held to be sufficient to repel the presumption that an execution and the judgment from which it issued were satisfied by a levy made upon personal property.

The amount of property on which an officer may levy by virtue of his process is not defined by law, and it would be extremely difficult to prescribe a rule on the subject. A large discretion in this respect is of necessity to be confided to the officer. Pas. Dig. art. 3775, note 867.

There is no doubt that an officer is liable in damages for making an excessive levy; nor that a sale would be void if the value of the property sold was so greatly in excess of the amount to be raised as to constitute a fraud on the part of the officer, or as to evidence a reckless indifference to the obligations of his trust. Pas. Dig. art. 3775, note 867.

The amount of an execution and the value of the property taken by virtue of it are not in all cases the only facts to be considered in determining whether the levy was excessive. In this case, for instance, the additional facts, that the agent of the defendant in execution pointed out the property to the officer, and that, within two days thereafter, the agent received from the defendant in execution a deed to the property, under which he now claims it, were also important to be considered in determining the question. Pas. Dig. art. 3775, note 867.

If the agent of a defendant in execution point out to an officer for levy the whole of a tract of land, although a part would suffice, and the whole of the tract be purchased at the sale by a stranger, it is clear that the agent is estopped from impeaching the act of the officer or the title of the purchaser on the ground that the levy was excessive.

APPEAL from Dallas. The case was tried before JOHN J. GOOD, Esq., special judge, chosen by the parties because NAT. M. BURFORD, the presiding judge, was a party.

Trespass to try title, instituted by the appellee on the 4th of June, 1860, to recover from the appellant one hundred acres of land in Dallas county. The plaintiff derived his title by purchase of the land at constable's sale. The land was levied upon as the property of J. B. Hudson, defendant in execution. It was admitted that the judgment and execution, being for some $52, were valid.

The defendant plead “not guilty,” and answered specially that the constable's sale, under which the plaintiff claimed, was void, because the levy was excessive. And further, the defendant alleged that a previous execution from the same judgment had been levied by the constable upon other property sufficient to have satisfied the execution, which other property was never sold by said constable, and that the judgment was fully paid off and satisfied beforet he issuance of the execution by virtue of which the land was sold. And further answering, the defendant says, that on the 9th of May, 1859, he purchased said land from J. B. Hudson, the defendant in execution, and paid for the same $950. Wherefore he asks that said Hudson be made a party defendant, and, in case the plaintiff recover the land, that this defendant have judgment against Hudson for said purchase money and interest.

The plaintiff denied generally the allegations of the defendant.

J. B. Hudson answered as a party defendant, and simply admitted his sale of the land to the defendant, A. P. Cornelius, for the amount alleged by the latter. No further notice of Hudson appears to be taken in the pleadings or judgment.

Upon the trial, it was admitted that the title to the land was perfect in Hudson at the date of the levy, which was the 7th of May, 1859. Plaintiff introduced the four executions successively issued upon the judgment; on the second of which, issued September 23, 1858, there appeared indorsed and erased a levy dated the 26th of September, 1858, on one white jennet, and another levy, dated three days afterwards, on one yoke of work oxen. By an unerased indorsement, dated the 14th of February, 1859, the constable returned the execution “not satisfied.” A third execution was returned “not satisfied” on the 7th of May, 1859, on which date a fourth execution was issued, and was levied the same day by the constable on the land in controversy. The land was sold on the 7th of June, 1859, and the plaintiff became the purchaser at the sum of $41.

The plaintiff introduced his deed from the constable, dated June 9, 1859.

The defendant, A. P. Cornelius, introduced a deed to himself from Hudson, the defendant in execution, for the land in controversy. This deed was dated on the 9th of May, 1859, being two days after the levy. It expressed a consideration of $950, but did not acknowledge its receipt nor contain any warranty of title, either general or special.

The defendant put in evidence the second execution, with its several indorsements already shown, and introduced the constable, who testified that the jennet levied upon was sold, and her proceeds applied to older executions against Hudson then in his hands; that the oxen levied on were not sold, for the reason that, at the date of their levy, witness had several older executions in his hands against Hudson, who, however, paid off such executions before the day of sale. This witness further testified, that before levying upon the land in controversy he called upon the defendant, A. P. Cornelius, who was the agent of Hudson, and asked him to point out property upon which to levy the fourth execution, dated May 7, 1859, and that A. P. Cornelius pointed out the land in controversy, and told witness to levy upon and sell the same.

The defendant proved by a witness that the tract of land, which the witness understood to be that in controversy, was worth, at the date of the constable's sale, $6.50 per acre. There was other evidence, but it does not seem to be material.

The court charged the jury as follows: “This is an action of trespass to try title to one hundred acres of land. Plaintiff claims the land as a vendee at a constable's sale. If he have shown a valid judgment and execution (and I charge you that those offered in evidence are), and a levy and regular sale made by virtue thereof, and also that the property in controversy was the property of J. B. Hudson on the day of levy, then the plaintiff has made out his case, and is entitled to a recovery.”

The following instructions were asked by the defendant, but refused by the court: “1st. If the jury believe from the facts proved that a levy had...