Owens v. Clark

• Decision Date: 05 December 1890
• Citation: 15 S.W. 101
• Parties: OWENS v. CLARK.
• Court: Texas Supreme Court

15 S.W. 101

OWENS v. CLARK.

Supreme Court of Texas.

December 5, 1890.

Appeal from district court, Van Zandt county; FELIX J. McCORD, Judge.

Kearby & Greer, for appellant. J. G. Russell and R. M. Lively, for appellee.

HENRY, J.

On the 14th day of October, 1887, I. B. Wallace recovered a moneyed judgment in the district court of Van Zandt county against I. E. Rose. The judgment was sold to Thomas Clark, the appellee, but no written transfer of it seems to have been made. An execution was sued out within 12 months from the date of the judgment, and returned credited with $50. On the 19th day of December another execution, in the form of an original, was issued upon the judgment, expressed upon its face to be "for the use of Tom Clark." This execution was returned with an indorsement showing that on the 21st day of December, 1888, it was levied on 27 bales of lint cotton, of the value of $45 per bale. John E. Owens, the appellant, made a claimant's affidavit, and gave bond for the trial of the right of property in the cotton levied upon. The issues tendered by the claimant were that he had purchased the cotton from the defendant in execution, and paid him for it, before the writ was levied upon it; and a denial of the validity of the levy because there existed no authority for issuing the writ for the use of Clark, and because the writ showed on its face that it was issued on a dormant judgment. The plaintiff, in reply, alleged that he was the owner of the judgment, and that the cotton was, when it was levied upon, the property of Rose, the defendant in execution; that the said Rose was, and had long been, insolvent; and that, if he in fact did transfer said cotton to the claimant, it was done with the intent to defraud his creditors, of which the claimant had notice. The evidence showed that the cotton in controversy was purchased by Rose with money borrowed by him for that purpose from the claimant; that Rose was indebted to the claimant for the money; that Rose was insolvent; that the cotton in controversy had on it the private mark of Rose, and was lying, with some other bales belonging to him, in the cotton-yard of one Kellam, in the town of Wills Point; that, on the day before the levy was made, the agent of Rose sold to the claimant the whole of the cotton owned by Rose, then in Kellam's cotton-yard. The authority of the agent to make the sale was proved, the price of the cotton was fixed, and the proceeds amounted to only enough to pay the indebtedness of Rose to the purchaser. The proprietor of the yard in which the cotton was stored was notified of the sale before the levy was made. No evidence was introduced even tending to disprove the amount or honesty of the indebtedness of Rose to the claimant, or that the claimant had any other intent in purchasing the cotton than to secure the payment of his debt. The claimant knew of the insolvency of Rose when he furnished him the money with which to buy the cotton, and when he purchased the cotton to pay the indebtedness. The price of the cotton was paid by crediting Rose with it in satisfaction of his indebtedness to the claimant. Upon the verdict of a jury, judgment was rendered against the claimant for the value of the cotton, and for interest and damages.

Strictly speaking, the clerk does not seem to have had authority to issue the execution for the use of Clark. It was his duty to follow the directions of the judgment in that respect. Upon a purchaser's showing proper authority, it would have been his duty to issue the execution...