Cox v. Miller

• Decision Date: 23 October 1880
• Docket Number: Case No. 912.
• Citation: 54 Tex. 16
• Parties: WM. COX v. CHRISTINA MILLER.
• Court: Texas Supreme Court

54 Tex. 16

WM. COX

v.CHRISTINA MILLER.

Case No. 912.

Supreme Court of Texas.

Oct. 23, 1880.

APPEAL from Cherokee. Tried below before the Hon. Peyton F. Edwards.

The opinion states most of the material facts. There was much evidence introduced to establish facts not deemed important in view of the opinion.

In addition to facts stated in the opinion, it should be stated that defendant offered in evidence an execution and judgment in the cause of E. J. Norton v. B. Miller, and the returns thereon by the sheriff, for the purpose of showing title in Mrs. Miller to the property in dispute. This execution and judgment was for about $150, and proceedings were had thereunder in April and May, 1876.

Plaintiff contended that the levy was, in law, no levy at all, and there was in fact no completed sale; that the whole proceeding was illegal and void; and further, that it was only another act of B. Miller and wife to defraud his creditors and effectually put his property beyond their reach. This proceeding was especially attacked, because it was contended that there was no seizure under the writ, and therefore no valid levy, and that there was a failure to comply with the bid, and therefore no completed sale.

It appeared in evidence that the appellant was a creditor to a large amount, for money deposited and cotton shipped, of the firm of Alford & Miller, during and prior to the year of 1875; that B. Miller and Geo. F. Alford were the partners comprising the firm; that in the month of July, 1875, this firm was seriously embarrassed and heavily in debt, owing about $239,149.82; that about this time, while Alford was endeavoring to obtain relief, and, if possible, effect arrangements to enable the firm to continue its business, B. Miller, the partner left in charge at home, being advised by Alford of heavy losses sustained on cotton transactions then depending in Europe, in which they were concerned, without the knowledge of Alford and during his absence, began transferring property to his wife. The first conveyance was a deed of trust of date July 2, 1875, conveying to B. B. Cannon all his interest in a stock of goods, accounts, claims, cotton and everything pertaining to the business of Miller & Cannon, named as then existing in the town of Rusk, Texas, and purporting to convey only one-half interest then claimed by him, in consideration of $10,000, then acknowledged to have been paid him, and the further consideration of one dollar; stipulating that the said Cannon should hold and use the same as directed by Mrs. Miller and sell the same when so directed by her, and empowering her to appoint another trustee on conditions. Thus the matter stood till 17th November, 1875, when he executed to Cannon for use of his wife a second deed of trust, conveying all the property mentioned in the first or prior deed, and also everything else owned or claimed by him, including his interest in the assets of the firm of Alford & Miller, referring to and approving the former deed, and reciting that:

“Whereas, on the 20th day of February, 1873, I became indebted to Christina Miller, my wife, in the just sum of $29,044.39, gold dollars, money which was separate property of hers, and which she loaned to me at that date, and for which I this day made, executed and delivered to said Christina Miller my promissory note in writing, in words and figures as follows, to wit:

+---------------------------------------------+
                ¦($29,044.39.)¦RUSK, TEXAS, November 10, 1875.¦
                +---------------------------------------------+
                

One day after date I promise to pay to Mrs. C. Miller or bearer, twenty-nine thousand forty-four and 39-100 gold dollars, at Rusk, Texas, same being for borrowed money, with ten per cent. from February 20, 1873, value received.

B. MILLER.

And whereas, on the 16th day of July, A. D. 1874, the firm of Alford & Miller, of Galveston, Texas, of which firm I, the said B. Miller, was a member, borrowed of said Christina Miller the sum of seventeen thousand two hundred and six and 29-100 dollars, and for which said sum the said firm of Alford & Miller made, executed and delivered to said Christina Miller their promissory note in words and figures as follows, to wit:

+---------------------------------------------+
                ¦($17,206.29, gold.)¦GALVESTON, July 16, 1874.¦
                +---------------------------------------------+
                

One day after date we promise to pay to the order of Mrs. Christina Miller seventeen thousand two hundred and six and 29-100 dollars, with interest at ten per cent. per annum till paid, value received.

ALFORD & MILLER.”

Cannon was directed to use and control the property for the benefit of Mrs. Miller and in such manner as she might direct. He was authorized to sell at public or private sale and directs application as follows: First, to pay expenses of executing the trust; second, the interest that has accrued or that may accrue on the note for $29,044.39; third, the principal of said note; fourth, the interest on the Alford & Miller note for $17,206.29; fifth, the principal of said note, and if there be any balance, to be paid over to B. Miller; and directs, if the said Mrs. Miller should require the property to be sold at public sale, it should be sold for gold, after ten days' notice, etc.; and concluding that this instrument is not to affect the former, and that it, the former deed, of date 2d July, 1875, was an absolute sale of the property named therein in part payment of the indebtedness of B. Miller to his wife, for which (he says) she holds his note for $29,044.39, just then executed, and declaring that this note should be credited with the same as soon as the said trustee could ascertain its value, etc. Cannon held this property till 16th day of March, 1877, when he made a deed of conveyance, whereby he conveyed everything mentioned to Mrs. C. Miller, except what had been otherwise converted into money or securities during the preceding two years; and he recited therein a consideration of $14,364.96, and credited the same on the $29,044.29 note. The evidence did not seem to establish the existence of an indebtedness from Alford & Miller. On the contrary, Geo. F. Alford testified that Alford & Miller did not owe Mrs. Miller.

Nunn & Williams, for appellant.

I. To make a valid levy it is essential that the property be actually seized, and taken into custody by the sheriff. Freeman on Executions, secs. 260, 261, 274, with many authorities cited in notes, including decisions of many of the states; Crocker on Sheriffs, sec. 425.

II. The officer may at his peril leave defendant in execution in possession, but there must be a relinquishment by defendant of right of sale or disposition, and there must be the assumption of exclusive possession by the officer. Freeman on Executions, sec. 261.

III. All intent to hinder, delay and defraud creditors may be inferred from the fact that the defendant is permitted to retain the property some considerable time after the levy. Freeman on Executions, sec. 261. And this would seem to be conclusive if prompted by the plaintiff in execution. United States v. Conygham, 4 Dall., 358; Dean v. Davidson, 13 S. & R., 345; Corlies v. Stanbridge, 5 Row., 286; Levy v. Wallis, 4 Dall., 167;Kellogg v. Griffin, 17 Johns., 274;Swiggert v. Thomas, 7 Dana, 220; Impsey on Sheriffs, 125; Dickinson v. Cook, 17 Johns.; Lewis v. Smith, 2 S. & R., 142.

IV. The interference of the plaintiff with the writ, whereby he procures the property to be left with the defendant, generally renders the writ fraudulent and void. “But whenever it appears that the property was left with the defendant, not merely as its custodian, but with intent that he should continue to exercise full control and ownership, including the power to sell, the most indulgent of courts will not hesitate to treat the levy as fraudulent.” Freeman on Executions, sec. 261; Cook v. Wood, 1 Harr. (N. J.), 254; Poress & Co.'s Appeal, 5 Wright, 273; Keyser's Appeal, Penn. St., 409; Swiggert v. Thomas, 7 Dana, 220; Cumberland Bank v. Hunt, 4 Harr. (N. J.), 167; Davidson v. Waldron, 31 Ill., 120; Heitzman v. Divil, 11 Penn. St., 264; Farrington v. Sinclare, 15 Johns., 428.

V. The particular property to be sold must be specified. Warring v. Loomis, 4 Bart., 484; Sheldon v. Loper, 14 Johns., 352;Cresson v. Stout, 17 Johns., 116.

VI. The property must be in a condition that the bidders can examine it, otherwise the sale is void. Tibbetts v. Jangnun, 58 Ill., 43;Herrod v. Bartley, 15 Ill., 58;Cresson v. Stout, 17 Johns., 116;Ainsworth v. Greenlee, 3 Murph., 470; Blanton v. Morrow, 7 Ind. Eq., 47; Linnendall v. Doe, 14 Johns., 222;Gaskill v. Aldrich, 41 Ind., 338;Baker v. Casey, 19 Mich., 220;Newman v. Hook, 37 Mo., 207; Rockwell v. Ellsworth, N. Y. Leg. Vos. 346; Brown v. Pratt, 4 Wis., 513;Gift v. Anderson, 5 Humph., 577; Freeman on Executions, sec. 290.

VII. A sale en masse has been held to be void. Lee v. Mason, 10 Mich., 403;Udall v. Kahn, 31 Mich., 197;Doe v. Smith, 4 Blackf., 228; Reed v. Diven, 7 Ind., 187; Banks v. Bales, 16 Ind., 423;Peel v. Broyer, 30 Ind., 332;Tyler v. Wilkinson, 27 Ind., 450;Gregory v. Purdain, 32 Ind., 453;Voss v. Johnson, 41 Ind., 19; Bordens v. Huber, 45 Ind., 235;Collett v. Gilbert, 23 Ind., 614; Kloff v. Witmoyer, 43 Penn. St., 219; Wenters v. Burford, 6 Col., 328.

Willson & Willson, for appellee.--As to the validity of the conveyances from B. Miller to C. Miller, Baldwin v. Peet, 22 Tex., 714;Baily v. Mills, 27 Tex., 437. As to her title by purchase at sheriff's sale, Coffee v. Silvan, 15 Tex., 362;Howard v. North, 5 Tex., 306;Rose v. Huston, 11 Tex., 326;Story v. Marshall, 24 Tex., 307;Smith v. Boquet, 27 Tex., 513.

M. Priest, also for appellee.

MOORE, CHIEF JUSTICE.

This is a proceeding under the statute for the trial of the right of property levied on by an execution from the district court of Galveston county, on a judgment in favor of appellant, Wm. Cox, against the firm of Alford & Miller. The property in question...