Evans v. Henry S. Miller Company, 4769
| Decision Date | 20 March 1969 |
| Docket Number | No. 4769,4769 |
| Citation | 440 S.W.2d 317 |
| Parties | Lon EVANS, Sheriff of Tarrant County, Texas, et al., Appellants, v. HENRY S. MILLER COMPANY, Appellee. . Waco |
| Court | Texas Court of Appeals |
Brown, Herman, Scott, Young & Dean, J. Shelby Sharpe, Ft. Worth, for appellants.
Akin, Steinberg & Stanford, Lawrence E. Steinberg, Dallas, for appellee.
Plaintiff-appellee brought this action against the sheriff of Tarrant County and the surety on his official bond. It is a statutory action under Art. 3825, Vernon's Ann.Civ.Stat. to recover the amount of plaintiff's unsatisfied judgment previously obtained against Joseph Shoaf. The ground of recovery is that the sheriff failed to levy execution upon realty alleged to have been owned by Shoaf, the judgment debtor.
Plaintiff proved the rendition of the judgment against Shoaf, issuance of execution, transmittal of the execution to the sheriff, correspondence requesting the sheriff to levy on specified realty, a letter from the sheriff stating record title to the property was in the name of Mrs. Shoaf, replies stating the property was purchased with community funds and renewing the request to levy on it, a letter from the sheriff repeating his refusal to levy, his request for indemnity bond and the reply pointing out none was required for levy on realty, and execution of the sheriff's official bond by the surety.
After plaintiff's repeated insistence that the levy be made and the sheriff's continued refusal, Mrs. Shoaf conveyed the land to her mother.
Plaintiff pleaded that the property on which the sheriff refused to levy execution was owned by Shoaf and his divorced wife as community property, and that its judgment against Shoaf was for a community debt. Defendants pleaded the property was the separate property of Mrs. Shoaf, as the deed to her prior to the judgment against Shoaf recited. Other defenses not necessary to note were asserted.
In a non-jury trial judgment was rendered against the sheriff for the amount of the judgment against Shoaf plus interest, with credit for partial satisfaction. Judgment against the surety was for the amount of the bond, execution of which was established. The trial court found that the land in question was community property of Shoaf and his wife, and was subject to execution.
The substance of defendants' position under their first group of 14 points is that the land was Mrs. Shoaf's separate property as a matter of law, and the recitations in the deed to her precluded introduction of extrinsic evidence, under the record, to show it was acquired as community property. We sustain the contentions that under the record the evidence was inadmissible, and reverse.
It is held that when an execution is delivered to a sheriff and he is directed to levy on specified land there is 'no occasion for him to concern himself about the title to the land pointed out to levy on,' and it is his duty to levy irrespective of 'whether the land was owned and possessed by another.' Wilson v. Dearborn, Tex.Civ.App., 174 S.W. 296. Where defendant in judgment asserts a homestead claim, the sheriff is said to be 'not a tribunal to determine' the facts, and his failure to levy 'renders him and his sureties prima facie liable to the plaintiff in execution' for his debt.
The burden is upon the officer to overcome the prima facie case 'by showing that nothing could have been collected on such execution by proper diligence'. Harston v. Langston, Tex.Civ.App., 292 S.W. 648, 650, writ ref.; B. F. Goodrich Rubber Co. v. Valley Plumbing & Supply Co., Tex.Civ.App., 267 S.W. 1036, 1038 and authorities cited. See Fant Milling Co. v. May, Tex.Civ.App., 240 S.W.2d 454, 449, writ ref. n.r.e.
The officer and his surety rely, as a pleaded affirmative defense to discharge this burden, on the 1959 deed to Mrs. Shoaf from a third person during her marriage. This deed recited a consideration of $1.00 and a vendor's lien note for $8,000 paid and to be paid out of Mrs. Shoaf's 'sole and separate estate'. It recited that the land was conveyed to her 'as her sole and separate estate'.
The debt out of which plaintiff's judgment arose was contracted in 1964. The judgment on which the execution issued was rendered in 1965 and the execution was delivered to the sheriff in November of that year. Shoaf and his wife were divorced in 1966. The divorce decree recited, with approval of the parties, that they 'own certain property as community property, and the parties announced to the court in open session that they have voluntarily agreed upon a division and partition of said property' according to which the land in question was awarded to Mrs. Shoaf as her separate property.
Shoaf testified he was an experienced real estate dealer and negotiated the acquisition of the land; that the 'property was sold to me', but the title was taken in his...
To continue reading
Request your trial
-
Henry S. Miller Co. v. Evans
...and judgment was rendered in favor of the Miller Company. The Court of Civil Appeals reversed and remanded the cause to the trial court. 440 S.W.2d 317. We reverse the judgment of the Court of Civil Appeals and render judgment for petitioner for nominal damages in the amount of $1.00, plus ......