Hamburg v. Wood

• Citation: 18 S.W. 623
• Court: Supreme Court of Texas
• Decision Date: 04 May 1886
• Parties: HAMBURG v. WOOD <I>et al.</I><SMALL><SUP>1</SUP></SMALL>

18 S.W. 623

HAMBURG v. WOOD et al.¹

Supreme Court of Texas.

May 4, 1886.

Appeal from district court, Wheeler county; FRANK WILLIS, Judge.

Action for the trial of the right of property by Henry Hamburg against O. P. Wood & Co. Plaintiff had instituted suit against James M. Sands for the recovery of $685.95, and attached an undivided half interest in certain personal property. O. P. Wood & Co. filed an affidavit of claim of this undivided half by transfer from Sands. Judgment for claimants. Plaintiff appeals. Reversed.

J. N. Browning, for appellant. Grigsby & Houston, W. H. Woodman, and Walton, Hill & Walton, for appellees.

ROBERTSON, J.

The appellant urges that our statute for the trial of the right of property does not authorize a claim of an undivided interest in personalty. Several provisions of the statute make it clear that the proceeding contemplated was only intended for cases in which the officer actually seized the subject of the levy. Without having possession, the sheriff could not deliver the property to the claimant. The claimant could never fulfill that alternative in the condition of his bond authorizing a return of the property if the claim is not sustained. The burden of proof is determined by ascertaining from whom the officer takes the possession of the property. But, when a levy is made upon an undivided interest, the sheriff may take possession of the whole, if the defendant in the writ is entitled to such possession. Rev. St. arts. 2292, 2313. The provision of the statute for the trial of the right of property is that claim may be made by any person not a party to the writ when personal property is levied upon. In this case the sheriff, by virtue of levy upon a half interest, seized the whole. His act affirms that the possession of the whole is an incident of the right to the half levied upon. Any one claiming that half under the statute acquiesces in the sheriff's theory that the half seized and claimed entitles the owner to the possession of the whole. The claimant admits the sheriff's right to the possession under his levy, if the interest levied upon is subject to the writ. The sheriff admits that the claimant is entitled to the possession if he is the owner of the interest levied upon. As between them, the right of possession is determined by an adjudication of the title to the one-half in controversy between them, without any reference to the ownership of the other half. The plaintiff in the writ succeeds, when the contest with the claimant is inaugurated, to the sheriff's position. For all the purposes of the proceeding instituted by the claim, the half interest in controversy is the whole subject-matter. The half interest not levied upon was not claimed by the plaintiff to be subject to the writ. The claim of the half interest levied upon was a denial of any right subject to levy in the defendant in the writ. Under a claim of the very interest levied upon, the issue is presented by the claimant that the defendant in the writ has no interest whatever in the property seized. He shows this as clearly by claiming that interest seized as if he asserted that the interest not claimed belonged to some person not a party to the suit. It is held in Alabama, under a similar statute to ours, tht, under a claim of the whole chattel levied upon, proof of the ownership by the claimant of one-half and of the ownership of the other half by one not a party to the writ entitled the claimant to judgment. McGrew v. Hart, 1 Port. (Ala.) 175; Cotten v. Thompson, 21 Ala. 574. In those cases the whole was levied upon, and the decisions could proceed only upon the theory that, under the statute, the owner of any interest in a chattel in which the defendant in the writ has no interest may claim. In McGrew v. Hart the opinion was delivered by Chief Justice LIPSCOMB, and it is not improbable that our statute was modeled upon that of Alabama. We have not access here to a copy of the original act of 1828 of that state, but its provisions, as indicated by the early decisions made under it, seem to be the same as those contained in the Code of 1876, (Townes v. Alford, 2 Ala. 378,) and substantially the same as the Texas law. Before this remedy had been incorporated in our jurisprudence the statute creating it in Alabama had received the construction announced in McGrew v. Hart. The defect in the common law, remedied in Texas and Alabama by the provision for the trial of right of property, is cured in other states by the action of replevin. In that action the claimant is plaintiff. He sues for the property, and to maintain his suit must establish such title and make such parties as will entitle him to recover the property in other actions. As a part owner cannot generally recover a chattel, wrongfully withheld, he cannot, except under special circumstances, maintain replevin without making his co-owner a party. Hart v. Fitzgerald, 2 Mass. 510; Tripp v. Riley, 15 Barb. 333. On the other hand, in the trial of the right of property, the plaintiff in the writ is the plaintiff in the suit instituted by the claim. He holds the affirmative of the issue to be tried, whether the property levied upon is subject to the writ. The claimant is the defendant in the suit, and may, without proving any interest in the thing seized, defeat the levy by showing that the writ is void. Meader Co. v. Aringdale, 58 Tex. 447; Pace v. Lee, 49 Ala. 575; Ellis v. Martin, 60 Ala. 398; Jackson v. Bain, 74 Ala. 328; Nordlinger v. Gordon, 72 Ala. 239. By a special provision of our law, the plaintiff makes a prima facie case by proof that the possession was not with the claimant at the time of the levy. To rebut the case thus made out, the claimant must show that the property is not subject to the writ, and that he has such interest in the property as authorizes him to retain and defend the possession acquired from the officer. This interest, it is held in Alabama, must be such as to entitle him to maintain trespass, trover, or detinue. Lehman v. Warren, 53 Ala. 535; Shahan v. Herzburg, 73 Ala. 57; Pollak v. Graves, 72 Ala. 347; Treadway v. Treadway, 56 Ala. 390; Boswell v. Carlisle, 55 Ala. 554; Irons v. Reynolds, 28 Ala. 305. In all these cases, however, the character of the claimant's title, and not the quantity of his interest, was in discussion. The interest would have been held sufficient, probably, if the quality of the title had been unexceptionable.

Dickerson Bros. were in no way concerned with the issue in this suit. If they disputed the proposition on which the sheriff proceeded in his levy, that the owner of the Sands interest was entitled to the possession, they were not required to test the question by claim, but could sue for damages. They had as much right to choose their remedy as did Wood & Co. By claiming, Wood & Co. only surrendered their own right to an action for damages. By refusing to claim, Dickerson Bros. could not prevent the election of Wood & Co. If the levy had been upon the whole, the several part owners might be compelled to act in concert. But, when the levy is upon an undivided half, the owner of that half cannot be deprived of his right to claim by the non-concurrence of the other part owners. Unless Dickerson Bros. denied that the right of possession was an incident of the Sands interest, no right of theirs was affected by the levy, and they could maintain neither a claim nor an action for damages. If they had joined Wood & Co. in the claim, they would have volunteered in a controversy, the result of which could, in no event, have affected their rights Against them, neither the plaintiff in the writ nor the claimants asserted aught. Unless they denied that possession was an appurtenant of the Sands interest, they could not possibly have been proper parties to this record.

The affidavit of the claimants did not show that the half interest claimed was the half interest levied upon; nor, indeed, that the half interest not claimed was not owned by Sands. There was, therefore on the face of the affidavit, nothing inconsistent with the sheriff's right to retain possession. Upon such showing, the sheriff might have refused to recognize the claim. It was clearly developed on the trial that the interest levied upon and that claimed were identical. When the sheriff surrendered the property without the disclosure of this identity in the affidavit, he assumed responsibility for the fact. But the plaintiff in the writ contended that for this omission in the affidavit the claim should be dismissed. The affidavit is not a pleading. It is to be passed upon only by the sheriff, who is not required to be learned in the law. It is a safeguard additional to the bond against frivolous delays of legal process. Its function is discharged when it has been accepted, in company with the more substantial assurance of good faith, the bond. There was an affidavit describing the property seized and the interest claimed. It was sufficient to perform the part prescribed for an affidavit in the institution of a trial of the right to the interest levied upon in the property taken. In Lehman v. Warren, 53 Ala. 539, Chief Justice BRICKELL expressed the opinion of the court in this language: "The affidavit serves its purpose when, with a proper bond by the claimant, it arrests the action of the officer and introduces the claim into cour...