Smothers v. Field, Thayer & Co.

• Decision Date: 09 February 1886
• Docket Number: Case No. 2118
• Citation: 65 Tex. 435
• Parties: A. J. SMOTHERS v. FIELD, THAYER & CO.
• Court: Texas Supreme Court

65 Tex. 435

A. J. SMOTHERS

v.FIELD, THAYER & CO.

Case No. 2118

Supreme Court of Texas.

Feb. 9, 1886.

APPEAL from DeWitt. Tried below before the Hon. H. Clay Pleasants.

December 5, 1884, Field, Thayer & Co. recovered, in the district court of DeWitt county, a judgment against A. W. Evans for $828.17, and costs. Execution was duly issued on this judgment and returned “no property found.” On March 22, 1885, an alias execution was issued thereon, directed to the sheriff of Lavaca county, and, by plaintiffs' attorneys, placed in the hands of that officer, A. J. Smothers, with instructions to levy the writ upon a certain tract of land in the latter county, conveyed, October 4, 1884, by C. C. Haynes and wife to F. M. Evans. The officer refused or failed to make the levy; and, on May 16, 1885, Field, Thayer & Co, instituted this proceeding against him and the sureties on his official bond, by written motion, filed in the district court of DeWitt county, for such failure or refusal.

The motion alleged, that the conveyance from Haynes and wife to F. M. Evans was for a valuable consideration, and that F. M. Evans was, at the time of such conveyance, and had been, continuously since then, the wife of A. W. Evans, the defendant in execution; and it prayed for judgment against the officer and his sureties for the amount of their judgment, and interest and costs, etc. The defendants in the motion pleaded, specially: first, that the property upon which the sheriff had been directed to levy, was, at that time, the separate property of F. M. Evans, and that A. W. Evans, the defendant in execution, at no time owned it or any interest therein, or any interest in any other property in Lavaca county; second, that the property was, at the time, mortgaged for greatly more than its value; third, that the plaintiff directed him to levy on land conveyed by C. C. Haynes and wife to A. W. Evans, whereas, the land in question had been conveyed by C. C. Haynes and wife to F. M. Evans.

The plaintiffs filed a general demurrer to these pleas, which was sustained. The cause was then tried by the court without a jury, the trial resulting in a judgment in favor of the plaintiffs for $861.30. The defendants appealed.

Ellis & Patton, for appellants, on the action of the court in sustainingplaintiffs' demurrer, in so far as it was directed at their first special plea, cited: R. S., arts. 2288, 2326; Smith v. Perry, 18 Tex. 512;McKamey v. Thorp, 61 Tex. 650, 651;Parker v. Coop, 60 Tex. 116; Freeman on Ex., secs. 108, 254, 272.

On the action of the court in sustaining plaintiffs' demurrer, in so far as it was directed at their second special plea, they cited: Robinson v. Schmidt, 48 Tex. 13;Smith v. Perry, 18 Tex. 512-514;Hamilton v. Ward, 4 Tex. 370;Underwood v. Russell, 4 Tex. 175; Sedg. on Dam., p. 95.

W. R. Friend, for appellees, cited: R. S., 2326; Freeman on Ex., secs. 108, 115, 208, 368; Cook v. Bremond, 27 Tex. 457;Kirk v. Nav. Co., 49 Tex. 213;Parker v. Coop, 60 Tex. 116;McKamey v. Thorp, 61 Tex. 650; Wallace v. Campbell, 54 Tex. 190; Duty v. Graham, 12 Tex. 434;Buchanan v. Munroe, 22 Tex. 537; 4 Kent's Comm., p. 160; Walton v. Compton et al., 28 Tex. 573.

WILLIE, CHIEF JUSTICE.

In order to sustain a motion against a sheriff and his sureties, under art. 2326, Revised Statutes, the plaintiff must make out a case showing, prima facie, that the defendant in the writ, which the sheriff has failed to levy, had property subject to execution.

This prima facie case may be made by showing a state of facts which ordinarily, and without explanation, furnish satisfactory evidence of title, and do not show that the property is necessarily saved from forced sale by virtue of the exemption laws. If the plaintiffs make out such a case, it devolves upon the sheriff, if he can defeat the motion, to disprove this evidence, or to introduce proof showing that the apparent liability of the property to execution is not in accordance with the true state of the case. For instance, if the possession of the defendant is relied on by the plaintiff to show title, the sheriff may show, in defense, that it was held in trust for another. So, if the defendant holds under a conveyance to himself, or to his wife for value, the sheriff may show that the conveyance was either in trust for some one else, or that the value paid for the property was the separate estate of the wife. And if the defense is that the property is exempt by law from execution, this fact must be shown by the sheriff, as there is no presumption that the property is thus exempt.

As the plaintiff is not bound to allege any more than he must prove, it is sufficient that he sets forth in his petition a state of facts, such as, if established, will shift the burden of proof upon the defendant in the motion. The defendant must prepare his pleadings to correspondwith the character of proof to be used by him, to meet the prima facie case of the plaintiff. If he proposes to disprove the facts alleged by the plaintiff, a general denial will serve his purpose. But if the facts alleged are true, and he wishes to explain or avoid them, he must aver, specially, the matters of...