Briggs v. Briggs

247 S.W. 312 | Tex. App. | 1922

It is insisted by appellant that the findings of fact made by the jury required a judgment in his favor, and that it was error to enter, as was done, judgment thereon in favor of the claimant. The trial court was authorized, as he evidently did, to construe the verdict in the light of the further facts which were undisputed and of the issues pleaded, and in so doing he did not err in entering a judgment on the verdict in favor of the claimant, for the findings meant that the claimant was in lawful possession of all the cotton, with an interest therein to the extent of his one-fourth interest as rent. It was an admitted fact that W. A. Briggs, the landlord, had a one-fourth interest in the two bales of cotton. Further, T. M. Briggs, the tenant, "turned the two bales of cotton in controversy over to W. A. Briggs," when, according the undisputed evidence, the cotton was ginned. And it was agreed at the time of such delivery that the cotton was to be withheld from sale until such time as "higher prices" should prevail in the cotton markets Now in the trial W. A. Briggs claimed that T. M. Briggs turned the two bales of cotton over to him, not only for the rent, but also to secure his debts due for supplies and money advanced. But according to the jury findings T. M. Briggs did not owe W. A Briggs "anything" for supplies or money advanced or loaned, and W. A. Briggs did not have "any interest" in the cotton "levied on," meaning "three-fourths interest." Therefore the plain meaning of the verdict, in the light of the facts, is that T. M. Briggs, the tenant, turned the two bales of cotton over to W. A. Briggs, the landlord, to pay the agreed rent of one-fourth of the cotton, and that such rent interest of one-fourth was the full extent of any claim or interest that W. A. Briggs had in the two bales of cotton. Consequently, W. A. Briggs, under the evidence and the jury findings, was in possession of all the cotton, with an interest in the same to the extent of one-fourth

Under the facts the questions, then, in the case, are: (1) Was the cotton subject to levy under the attachment writ; and, if so, (2) was the course pursued in this case as prescribed by the statute? Under the statute the undivided interest of a pledgee or a partner is subject to a levy under a writ of attachment at the instance of a creditor. Articles254, 3743, and 3744, Rev.Civ.Stat.; Briggs v. Briggs (Tex.Civ.App.)227 S.W. 511. But it is subject only to a constructive levy of the attachment writ; that is to say, by giving the notice required by statute. Articles 255 and 3740, Rev.Civ.Stat. The officer levying the writ cannot legally take the property from "the possession" then rightfully held by the pledgee, assignee, or partner, and if the course prescribed by the statute for the levy of the writ in such cases is not followed, and the officer levies the writ "by taking possession thereof" of the property, there results an illegal ouster of rightful possession of the property held by the pledgee, assignee, or partner, which can be regained in the statutory proceeding of trial of right of property. Osborn v. Koenigheim, 57 Tex. 91; Schmick v. Bateman, 77 Tex. 330,14 S.W. 22. So in this case when the officer levied the attachment and seized and threatened to take the two bales of cotton from the warehouse, and through compulsion of office required the appellee to make and file a claimant's affidavit and bond, the course prescribed by the statute for the levy of the writ was not followed, and the appellee's possession of the cotton was illegally ousted and disturbed; and as the levy of the writ of attachment was, in legal effect, contrary to law and void, the claimant had the right to regain that possession of the cotton that he had at the time of the wrongful ouster in this case. Further, as the writ of attachment was not levied according to the course prescribed by the statute, an attachment lien on the property would not exist, and the appellant would in this case have no lien on the property in virtue of the attachment writ so illegally levied on the cotton. And therefore, having no lien on the cotton, the appellant was not entitled to a judgment on the appellee's claim bond for the value of the three-fourths interest of T. M. Briggs in the cotton on the ground that W. A. Briggs sold the entire cotton after the claim bond was filed. W. A. Briggs, having rightful possession of the cotton, could sell it and collect the proceeds of sale and pay over to T. M. Briggs or his order the three-fourths interest therein. Appellant could rightfully complain of the sale only in the event and upon proof that he had a lien thereon, and, if he did not have a lien thereon, the appellant could not complain.

The verdict, in the light of the admitted facts, authorized the judgment rendered, and the judgment is affirmed.