Erwin v. Bowman

51 Tex. 513 | Tex. | 1879

Gould, Associate Justice.

The policy of the law forbids a sheriff or constable to enforce an execution for his own benefit, and the court did not err in so much of the charge as held Erwin, the constable, liable as a trespasser', if at the time of the levy and sale he had an interest in th'e judgment or its proceeds beyond his regular fee as constable. (Paschal’s Dig., art. 995; Carpenter v. Stillwell, 11 N. Y., 60 ; Mills v. Young, 23 Wend., 315; Rorer on Judicial Sales, secs. 594, 1024, and references; Riner v. Stacy, 8 Humph., 288.)

If either levy or sale was made by the direction or procurement of Magale, the judgment creditor, after having by his contract with Erwin made him so interested, then he, too, was a trespasser. The charge of the court as to Magale’s liability, however, was not so qualified. As given, the charge was erroneous; for it assumed that Magale was a trespasser if Erwin was interested in the proceeds of the execution levied. But our opinion is, that this error in the charge did not prejudice the defendant Magale, and does not, under all the circumstances of the case, justify a reversal of the judgment. It was beyond controversy that if Erwin was so interested as to be a trespasser, he became so through his contract with Magale, and the latter thereafter indemnifying him and accepting the proceeds of the sale, adopted the constable’s acts in levying and selling as his own. Magale’s liability, under the circumstances, was scarcely more questionable than if he had been present and assisted at the original levy. The indemnifying bond was but one of the circumstances fixing that liability, and in that respect the case is clearly distinguishable from Longcope v. Bruce, 44 Tex., 438.

Although Magale set up the defense that he had not participated in Erwin’s trespass, the record fails to show that this defense was actively urged at the trial. So charge is found, asked for Magale, presenting that defense, and the motion for new trial fails to show that the attention of the court was called to the error in the charge on that point. Indeed, whilst the assignment of errors objects to the paragraph of the charge embodying this error, the objection specified in the assignment is only on the question of Erwin’s interest and the vagueness of the charge. The objection to the charge as injurious to Magale, apart from Erwin, does not appear to have been made below, or to be intended to be one of the errors assigned. The evidence fixing the liability of Magale, if Erwin was liable, was such, that if, under a proper charge, the jury had found in his favor, though finding against Erwin, the verdict should have been set aside. Under these circumstances, we think that the error in the charge has not operated to the injury of Magale, and does not entitle him to a reversal of the judgment.

The defendants claimed that the property levied on had been sold for its full value and the proceeds applied to the satisfaction of Magale’s judgment against plaintiff Bowman, and complain that, the charge of the court precluded them from obtaining a reduction of damages below the actual value of the property taken, by reason of that fact.

This appropriation by the trespassers of the proceeds of the property wrongfully converted without the request or assent of the owner, cannot avail them as claimed. (Dallam v. Fitler, 6 Watts & Sarg., 323; McMichael v. Mason, 13 Penn. St., 214; Hanmer v. Wilsey, 17 Wend., 91.)

The property seized, though incumbered by a deed of trust, was taken from the possession of Bowman, and his right to sue for its conversion and to recover its value was, we think, unaffected by the trust deed.

The plaintiff recovered but the value of the property wrongfully converted, and the judgment must be affirmed.

Affirmed.