Meuley v. Zeigler

• Decision Date: 01 January 1859
• Citation: 23 Tex. 88
• Parties: CONRAD MEULEY v. JACOB ZEIGLER.
• Court: Texas Supreme Court

23 Tex. 88

CONRAD MEULEY

v.JACOB ZEIGLER.

Supreme Court of Texas.

1859.

A return to a writ of attachment, “levied upon land,” is defective, if it fail to describe the land with such certainty, that, by its own terms, it may be identified, without resorting to parol evidence. The return should be certain in itself, and should also show that the property levied on, was attached as the property of the defendant.

A return of a levy on such writ, as follows: “Received, June 17, 1853; levied same day, on lot No. 5, in block No. 12, in presence of R. S. Rankin, J. B. McCown, and Nelson Vosburg, with the improvements,” is defective, and will create no lien upon the property levied on, in favor of the attaching creditor, against a purchaser without actual notice that the attachment had been levied.

The purchaser of land, who consults with an attorney about the title, before making the purchase, is not thereby chargeable with all the knowledge the attorney may possess, about the matter concerning which he is consulted.

A deed without subscribing witnesses, but which has been acknowledged by the grantor before a proper officer, may be read in evidence, on proof of its execution; which may be made by the grantor, if not interested in the suit; or by any other person who was present at the execution of it. A deed thus executed, is valid and effectual to pass title.

APPEAL from Nueces. Tried below by agreement of parties, before F. Faunt Le Roy, Esq., special judge, the presiding district judge being disqualified to try the case.

This was a suit commenced on the 17th April, 1855, by Jacob Zeigler, the appellee, against Conrad Meuley, the appellant, to enjoin the sale of a lot of ground which the appellant was endeavoring to subject to the payment of a judgment obtained by him, on the 20th March, 1855, against one George Hoenig, for the sum of $190.

The appellant instituted his suit against George Hoenig, in the county of Nueces, on the 17th June, 1853, and on the same day, a writ of attachment was issued against the defendant therein on which the sheriff indorsed the following return, to wit: “Received, June 17, 1853; levied, same day, on lot No. 5, in block No. 12, in presence of R. S. Rankin, J. B. McCown, and Nelson Vosburg, with the improvements.”

The judgment against Hoenig decreed that the lot, described therein, according to said return, and being in the city of Corpus Christi, be sold to satisfy the said judgment.

Zeigler, in his petition, alleged, that on the first day of November, 1853, he purchased of the said Hoenig, by deed of conveyance, duly executed and recorded in the proper office of said county, lot No. 5, in block No. 12, on the beach, in the city of Corpus Christi, in said county, for a valuable consideration, and in good faith, paying therefor its full value, without notice that it was in any way claimed to be subject to the said attachment. The petitioner also alleged, that the judgment and claim of the appellant to sell the said lot so purchased by him, decreed to be sold as aforesaid, constituted a cloud upon his right and title to said property, and that he, the said appellant, would, as he threatened to do, cause the same to be advertised and sold, to satisfy the said judgment. There was a prayer for injunction, and that the property might be released from the attachment and all executions thereon. Injunction granted.

On the trial, the plaintiff introduced and examined as a witness, W. Merriman, who stated, that he had been employed and acted as the attorney of Hoenig, in the suit between the appellant and said Hoenig (the record of which was also in evidence, as also the deed from Hoenig to Zeigler, with parol evidence identifying the lot); that during its pendency, he was consulted professionally by Zeigler, as to his being able to purchase from Hoenig the lot now in controversy with safety; that he told Zeigler to examine the county records, to see if there was any conveyance of record; that Zeigler being satisfied that there was no adverse claim on record, he advised him that it would be safe to make the purchase. Witness supposed that the attachment had been levied upon the lot, but said nothing to Zeigler upon that subject, because he believed the suit was settled, and was or would be dismissed. The witness stated substantially, that he had derived that impression, from a casual conversation he had with Meuley. The suit was not in fact dismissed, but prosecuted to judgment.

There was a verdict and judgment for the plaintiff; the injunction was perpetuated; and there was a decree adjudging the title to the lot to be in the plaintiff, removing the cloud from his title, and quieting his possession thereof. The other facts appear in the opinion.

Allen & Hale, for the appellant. The counsel for the appellant desire to call the attention of the court to two leading points in this case: first, the admission in evidence of the deed from Hoenig to Zeigler, without subscribing witnesses; secondly, the overruling the motion for a new trial, when the proof showed that Zeigler had notice, through his attorney, of the lien of the attachment.

1. A deed, under our laws, cannot be proved by testimony going to establish the signature of the grantor, when there are no subscribing witnesses (Hart. Dig. art. 170); and such a deed is not valid. Merwin v. Camp, 3 Conn. 35; Markley v. Swartzlander, 8 W. & S. 172;Jones v. Crawford, 1 McMull. 373.

2. The omission in the sheriff's return, in not stating that the lot attached,...