28 Tex. 202 | Tex. | 1866
—The refusal of the court to give the instructions asked by appellant on the trial below is assigned as error. Hpon the first instruction, the question arises as to the effect of the levy made by virtue of the execution issued on the 23d day of September, 1858.
It has been repeatedly held, and may be considered well settled, that a levy upon sufficient personal property to satisfy the execution is a satisfaction of the debt, if taken from the possession of the defendant in execution. The
But if the levy be overreached by a prior lien, or be abandoned at the request of the debtor, or for his benefit, or be defeated by his misconduct, or if he retain possession of the property, and it be not sold, then it is not a satisfaction of the judgment. (Green v. Burke, 23 Wend., 501; Ostrander v. Walter, 2 Hill, 329; Churchill v. Warner, 2 N. H., 298; Folsom v. Chelsey, Id., 432.)
The execution in question was returned “not satisfied.” But proof was made on the trial that it was actually levied on one white jennet and one yoke of oxen^that the jennet was sold, and the proceeds applied to the payment of an older execution, then in the hands of the constable, against the debtor, Hudson, and that the oxen were not sold at all. It was also proved that the appellant, Cornelius, was the agent of the defendant in execution, Hudson, and that as such agent he pointed out the land in controversy to the constable to be levied on and sold, and that two days after the levy he received from Hudson the deed under which he claims title in this suit. The charge under consideration, asked by the appellant and refused by the court, is to the effect, “that if the jury believe that a levy had been made by virtue of a former execution, issued on the same judgment previous to the levy on the land, and that the property thus levied upon was not sold, then the levy upon the land is void, and the purchaser acquired no title.” The levy of the execution, and the fact that the property levied on was not sold, were not all the facts in proof material to be considered by the jury in deciding on the issue sought to be presented by this charge.
The proof goes further, and, in our opinion, satisfactorily repels the presumption that would otherwise have
Why did the appellant, Cornelius, the admitted agent of the defendant in execution, point out more property to be levied on and sold, if the constable already had in his possession and unaccounted for sufficient property to satisfy the judgment seized by virtue of a former execution?
Why did he -lie still and permit this land to be sold for the purpose of paying a judgment, if that judgment had already been satisfied?
The fact of pointing this land out and permitting it to be sold would seem to be conclusive evidence that the property levied on by virtue of the former execution had been disposed of to the satisfaction of the defendant in execution otherwise than in payment of this judgment, and-this conclusion corroborates and is supported by the return of the officer on the execution.
The effect of the charge, if given, would have been to exclude these facts from the consideration of the jury, which would have been manifestly unjust and improper. The charge was properly refused, because inapplicable to the facts proved, and calculated to mislead the jury.
The second charge asked, the refusal of which is assigned as error, reads as follows :
“ 2d, If the jury believe the levy upon the land was excessive, they will find for the defendant. In order to determine whether the levy is excessive, you will look to the amount of the execution and to the value of the land.”
Our statute nowhere defines the duties of an officer making a levy in respect to the amount of property he may subject to his process, and it would be extremely difficult to prescribe a rule for that purpose.
A great deal is necessarily confided to the sound discretion of the officer. The proposition is not to be disputed that a sheriff ought not to sell more of the defendant’s-property than a sound judgment would dictate to be suffi
In Wordye v. Baily, Noy’s, 59, the court said, that if the sheriff upon & fieri facias for forty shillings take five oxen, each of the value of £5, and sell them all, the defendants may have an action of trespass against him.
In Tiernan v. Wilson, 6 Johns. Ch., 415, the chancellor said:
“ There was, then, no excuse for such an outrageous breach of duty as setting up the plaintiff’s interest in two distinct lots; that is, his moiety of two hundred and nine and one-half acres in one lot, and his moiety of two hundred and thirty-six and one-half acres in the other lot, and exposing that whole interest (which, at the lowest calculation, was worth nearly $800) in one parcel and upon one bid, to raise so small a sum as $10 50. I shall accordingly set the sale aside, as fraudulent and void in law.”
In the same case, it is said that the rule, that no more property should be sold than is reasonably necessary to satisfy the debt, rests on principles of obvious policy and universal justice, and does not need the aid of any positive law to support it.
There can be no doubt but that a sheriff or constable would be liable in damages to the aggrieved party for a breach of duty in this respect; nor can there be any doubt hut that a sale of property so disproportioned in value to the amount to he raised, as to create the presumption of fraud or of reckless indifference to the obligations of his trust on the part of the officer, would be void.
. It would be a perversion of the spirit and policy of the power with which the officer is intrusted to tolerate, much less sustain, such an abuse of it.
It is indispensable, however, that a certain amount of discretion be intrusted to the officer who makes the levy, because of the impossibility of fixing certain rules,
The charge in question sought to submit to the consideration of the jury but two questions of fact in determining whether or not this levy was excessive and the sale under it void: one the value of the land, and the other the amount pf money to be raised by virtue of the execution. These were very important facts to be considered by the jury in that connection;" but it is believed that the fact that the appellant, Cornelius, acting as the agent of the defendant in execution, Hudson, pointed out the land in controversy to the constable to be levied on and sold, and we may add the fact, that two days after this levy was made the appellant received from Hudson the deed to this land, under which he claims title in this suit: these facts were also important to be considered, in order to arrive at a correct conclusion on this question.
It is quite clear that, after pointing out not a part of the land, but the whole tract, to be levied on and sold, and; it is purchased at the sale by a stranger, he is estopped from impeaching the act of the officer or the title of the purchaser, on the ground that the levy is excessive.
These controlling facts were, by the terms of the charge, excluded from the consideration of the jury; and the charge was, for that reason, properly refused by the court.
The general charge of the court we think sufficiently presented the law of the case to the jury. If the charges asked and refused had been so constructed as to be applicable to the facts of the case and proper to be given, they would doubtless have been submitted to the jury by the court; but we do not see how a different result could have been attained under the proof in the case. There is no error in the judgment, and it is
Affirmed.
