Lindsey v. Williams

• Court: Texas Civil Court of Appeals
• Writing for the Court: LINCOLN
• Citation: Lindsey v. Williams, 228 S.W.2d 243 (Tex. Ct. App. 1950)
• Decision Date: 09 February 1950
• Docket Number: No. 6432,6432
• Parties: LINDSEY et ux. v. WILLIAMS et al.

Page 243

228 S.W.2d 243

LINDSEY et ux. v. WILLIAMS et al.

No. 6432.

Court of Civil Appeals of Texas, Texarkana.

Feb. 9, 1950.

Edwin M. Fulton, Gilmer, W. C. Hancock, Pittsburg, Geo. W. Allison, Dallas, for appellants.

Florence & Florence, Gilmer, for appellees.

LINCOLN, Justice.

The appellees filed a petition in trespass to try title to Lot 3-B, Block 50 of the Town of Gilmer, as shown by the Freese and Nichols plat allegedly recorded in the deed records of Upshur County. On the same day Mrs. Bert Williams, one of the plaintiffs, through her attorney, filed her affidavit for a writ of sequestration alleging that Mrs. Williams is the owner of the property. Bond having been made and accepted, the writ of sequestration was issued by the clerk of the district court. The return of the sheriff shows that the writ came to hand on March 2 and was executed on the same day by taking into his possession the property described in the petition, Lot 3-B of Block 50 and that said property 'is now retained in my custody.' The writ was returned and filed on March 2. On March 6, 1946, the defendants in the suit, T. C. Lindsey and Laura Belle Lindsey, his wife, executed their replevin bond with Lawyers Surety Corporation as surety. The replevin bond caption gave the style and docket number of the suit, showed it was pending in the District Court of Upshur County, and in full reads as follows:

'Whereas, by virtue of a writ of sequestration issued out of the District Court of Upshur County, Texas, against T. C. Lindsey and Laura Belle Lindsey in the above entitled and numbered cause, on the 2nd day of March, 1946, Posey Seago, Sheriff of Upshur County, Texas, has taken the following property found in the possession of the said T. C. Lindsey and Laura Belle Lindsey to-wit:

'Lot 2B, Block 50 of the town of Gilmer, as shown on plat prepared by Freese & Nichols in 1938 and recorded in the deed records of Upshur County, Texas together with the brick building situated thereon, valued at the sum of Seven Thousand Five Hundred Dollars ($7,500.00);

'And the said T. C. Lindsey and Laura Belle Lindsey desire to retain possession of the same;

'Now, therefore, know all men by these presents;

'That we, T. C. Lindsey and Laura Belle Lindsey as principals, and the other persons whose names are subscribed hereto, as sureties, acknowledge ourselves bound to pay to Mrs. Bert Williams, plaintiff in said suit, the sum of $15,000.00, conditioned that the said T. C. Lindsey and Laura Belle Lindsey, defendants, will not injure the property, and that they will pay the value of the rents of the same in case they shall be condemend to do so.'

The foregoing bond was accepted and approved by the sheriff on the same day, March 6, and it was filed among the papers of the cause. As a result of the execution and delivery of the replevin bond the defendants were not dispossessed of the property sued for and remained in possession until about May 1, 1947. Final judgment was rendered in favor of the plaintiff Mrs. Bert Williams for the title and possession of the land sued for. The judgment recites that plaintiffs appeared in person and by their attorneys and that the defendants appeared through their attorneys and all parties announced ready for trial. A jury having been waived, the case was tried to the court. Briefly, the findings of the court as appearing in the judgment are as follows:

1-On April 19, 1947, the plaintiffs and defendants entered into an agreement whereby the defendants were to vacate the property, Lot 3-B, Block 50, on or before May 1, 1947.

2-The defendants agreed to pay the plaintiff Mrs. Bert Williams for her damages by reason of their holding the property from March 1, 1946, to May 1, 1947, rents in the aggregate sum of $1,066.74.

3-On April 30, 1947, defendant Lindsey and wife, through their attorney delivered to the attorney for the plaintiffs the keys to the building and the plaintiff Mrs. Bert Williams took actual possession of the property.

4-On March 2, 1946, the plaintiffs sued out the writ of sequestration placing it in the hands of the sheriff, and it was levied upon Lot 3-B; 'that said officer placed a value upon said building and property of $7,500.00, that thereafter on the 6th day of March, 1946, the defendants T. C. Lindsey and Laura Belle Lindsey, as principals and Lawyers Surety Corporation * * * as surety entered into a replevin bond in the principal sum of $15,000.00, conditioned that the said T. C. Lindsey and Laura Belle Lindsey, defendants, would not injure the property and that they would pay the value of the rents of the same in case they were condemned to do so.'

5-Lindsey and wife did not pay the rents due upon the property during the time that they held the same by virtue of the replevin bond and that there is still due the plaintiff Mrs. Bert Williams the sum of $1,066.74, of which sum $1,057.07 accrued after execution of the replevin bond.

6-The property sued for is the seperate property of Mrs. Bert Williams.

Following these findings, the court gave judgment in favor of Mrs. Bert Williams against Lindsey and wife for the title and possession of Lot 3-B, and also rendered judgment in favor of Mrs. Williams and against the defendants for $1,066.74, with interest after May 1, 1947, at 6%, and against the defendants and the surety on the replevin bond for $1,057.07, being the rents due after execution of the replevin bond, the judgment also carrying the costs of the court against the defendants Lindsey. It was further ordered that all proper and necessary writs issue for the enforcement of the judgment. To the action of the court in entering this judgment 'the defendants excepted' and gave notice of appeal to this court. Separate appeal bonds were filed by the defendants and by the surety company. The only statement of facts brought up on this appeal is that which was made on hearing of the motions for new trial. It must be assumed that on the original trial the evidence was sufficient to support the judgment.

The first and most serious points raised on this appeal are that the replevin bond described Lot 2-B, the obligation in the bond being to pay the value of the rents of Lot 2-B in case the defendants should be condemned to do so, that the defendants never replevied Lot 3-B, and that the judgment against the defendants and the surety company for the rents on Lot 3-B is contrary to and beyond the terms and conditions of the bond. After serious and painstaking study of this question we have reached the conclusion that the points of error cannot be sustained. Statutory authority and grounds for issuance of writs of sequestration are conferred by Art. 6840, R.S. of Texas. Since adoption of the Texas Rules of Civil Procedure, all statutory provisions governing procedure in such cases have been supplanted by the Rules. Rules 696-716. These rules in most instances are in the same, or substantially the same language as the former statutes. The first step to obtain sequestration after suit has been filed, is the filing of an affidavit, Rule 696, and it is required that the property to be sequestered 'shall be described with such certanity that it may be identified and distinguished from property of a like kind.' The party applying for the writ is required to make a bond to be approved by the officer authorized to issue the writ, in the amount and payable and conditioned as provided by Rule 698. There is no requirement that the property be described in the sequestration bond. The issuance of the writ and its requisities are provided for in Rule 699, and one of the requirements is that the writ shall describe the property as it is described in the affidavit. Rule 701 gives the defendant in sequestration the right to replevy the property, and reads as follows: 'When property has been sequestered, the defendant having possession of such property at the time the writ of sequestration was levied shall have the right to retain possession of the same by delivering to the officer executing the writ, his bond payable to the plaintiff, with two or more good and sufficient sureties, to be approved by such officer, in an amount not less than double the value of the property to be replevied.' Rule 702 sets forth the conditions of the replevy bond where the property to be replevied is personal property. Rule 703 states that 'If the property be real estate, the condition of such bond shall be that the defendant will not injure the property, and that he will pay the value of the rents of the same in case he shall be condemned so to do.' Thus it is seen that the only instruments which require a description of the property are the affidavit for the writ, and the writ itself. If the legislature had intended to require that the property must be described in the other proceedings, such as in the bond for sequestration and in the replevin bond, the presumption is that it would have inserted such requirement when it enacted the statutory provisions in force prior to adoption of the Rules of Civil Procedure. In like manner, if the Supreme Court, or its Advisory Committee which compiled the Rules, had deemed it important to describe the property in said bonds, it could and would have inserted the few words necessary for that purpose.

There is sound reason why the property need not be described again in the replevin bond, and, for that matter, in the sequestration bond. The affidavit constitutes the application. It is, of course, necessary that the application for a writ to seize specific property must describe that property so that, in the language of the Rule, it may be identified and distinguished from property of a like kind. The writ commands the officer to seize the specific property. To enable him to carry out the writ, it must also describe the property, and the requirement is complied with when it is described as in the affidavit (the application). Each of these various steps in sequestration is part and parcel of...