1 Tex. 124 | Tex. | 1846
Bennett and wife filed their petition against Gamble, administrator of Richardson, alleging that they are the owners, and in possession of a certain negro girl named Grace; that the said girl, whilst so in their possession, was levied on by an execution in favor of the said Gamble, as administrator of Richardson, against one William Lynam et ah, as the property of the said Lynam; that the petitioners had given bond as required by the statute, and they pray that Gamble be made a defendant; that he be cited to appear at the next term of the district court, then and there to answer the same; that a jury be impaneled to try the issue to be made, and pray for damages and costs. A summons was issued, which, with a copy of the petition, was- served on Gamble, who appeared and answered, by denying the negro to be the property of Bennett and wife. On the trial, two bills of exception were taken by the plaintiff • — ■ the first, to the refusal of the judge to permit an amendment to the petition, averring a right by prescription in the plaintiff to the girl, the subject of the controversy.
The second, to the overruling the motion of the plaintiff to quash the execution, marked B, because Gamble, the administrator had not been made a party to it. The jury found a verdict, “that the slave, Grace, was subject to the execution.” The plaintiff moved for a new trial, on the following grounds. 1st. That the verdict is contrary to law and evidence. ‘ 2d. The court erred in refusing to instruct the the jury, as asked for by the plaintiff, that two years’ peaceable possession would give the plaintiff title; and, 3d. The court erred in instructing the jury that the title of the plaintiff derived under the sheriff’s sale was void. This motion was overruled, and the plaintiff excepted to the same. The following is substantially a statement of facts sent up to this court: “An execution in favor of Yarlin Richardson against Lynam et al. was levied on the girl Grace; she was claimed by the plaintiffs and bond given pursuant to the statute, the issue being the right of property.” It was proven that the negro girl levied on was the property of Lynam, one of the defendants in
“ The above negro girl was sold to Messrs. Bennnett and Prescott, on the day advertised. Dan. McDokald, Sheriff Y. C.”
The deputy sheriff’s bill of sale bears date on the 7th July, 1840. The last execution bears date ón the 7th July, 18If, and on its face, appears to be an original i/n the name of Varlin llicharson. and eme-ries no evidence on it that it was wilder the cont/i'ol of Gamble. We will first consider whether the court erred in overruling the plaintiff’s motion to quash the execution last issued and levied on the negro
The statute in force at the date of the first execution in May, 1840, gives a lien on all the property of the defendant vn the county where the judgment is rendered, from the date of the judgment, provided, said lien shall cease to operate if execution he not sued out within twelve months from the date thereof and due diligence he not used to collect the same. 4 Laws of Texas, sec. 12, p. 95. The lien given from the date of the judgment has two conditions annexed, the issu-
In the case before us the first execution issued in May, 1840, the judgment was obtained in April, so that the lien was secured so far as it depended on the issuance of the execution. Our laws ¿require that an execution should be returned to the succeeding term, which would have been in October. The process would then ha functus officio, it would then give no effect to the lien of the judgment, and that dormant lien could only be again brought into life and energy by an alias, or, in the words of the statute, by due diligence; and we have construed that diligence to be the use of the means given by law to keep it alive. If this was not employed the lien, it seems to me, was gone; and our statute being silent as to the mode of creating a new one it would be effected alone by the rules of the common law. The second execution, the one that has been the occasion of the present contest, was not issued until the 7th of July, 1843, more than three years after the issuance of the first, and near three years from the time when it was returned and had performed its office. It certainly cannot be supposed after such a lapse of time that the judgment was only dormant, and only required the issuing of another execution to arouse it into life and vigor. The reason assigned at a most remote period, even as early as Edward the First, why a party ought not to be permitted to hang back on his judgment or on a defunct execution and still retain his lien was said to be, that it would restrain trade and be productive of fraud in the selling and transferring of movable property; and it was said to be unreasonable that because
We will now inquire into another point made in the court below and presented by the bill of exceptions.
That is, the refusal of the court to permit the plaintiffs to amend their petitition so as to set up their right by prescription to the slave in controversy. The proceedings in the court below were intended to be under the provisions of our statutes for the trial of the right of property. Laws of Texas, 1840, page 64.
By that act all that was required was simply an issue to be made up, as we believe, under the direction of the court; because the form in which it should be presented depended on the fact of the property levied on being in the possession of the defendant in the execution, or with the claimants. If with the former, the claimant assumes the affirmative; if with the latter, the onus is thrown on the plaintiff in the execution. This course was not pursued; but the claimants, after giving bonds under the statute, commenced an original and distinct suit by petition and summons, and the plaintiff in execution filed the answer. This course of proceeding certainly was never contemplated by the statute, and is productive of delay and unnecessary expenses. The claimants have not set up prescription in their petition, and if the case was to be tried as an ordinary one, there was no error in con