Riordan v. Britton

69 Tex. 198 | Tex. | 1887

Acker, Judge.

It is provided by our Revised Statutes that “the writ of attachment shall be levied in the same manner as is or may be the writ of execution.” (Article 167.) It is further provided that “in order to make a levy on real estate, it shall not be necessary for the officer to go upon the ground, but it shall be sufficient for him to indorse such levy upon the writ,” (Article 2291.)

In Sanger Brothers v. Trammell, 66 Texas, 361, it is said: “This is but declaratory of what the law was previous to the adoption of the Revised Statutes. (Hancock v. Henderson, 45 Texas, 479.) Feither the statutes nor the decisions of this State have recognized any other method except this of making a levy upon land; and, without some statutory provision, the mode adopted in Texas seems to not only be the proper, but the necessary method of making the levy. (Drake on Attachments, section 238.) Whatever other acts may be performed by the sheriff in •ma.lring the levy, the indorsement upon the execution or attachment must take place before the levy is complete. All other steps are unnecessary, and none of them by force of our laws, can give validity to a levy unaccompanied by an indorsement. Hence,.from the time of making the indorsement must be dated the lien acquired upon the property.”

We therefore conclude that the court erred in its finding that the act of an officer in going upon the premises on the morning of the twelfth of February, 1882, and there declaring that he levied the writ under which appellee claims upon the property in controversy, constituted a valid levy. But is this such error as requires, under the facts of this case, a reversal of the judgment below? We think not; for it conclusively appears from the evidence that the levy was indorsed upon the writ under which appellee claims, prior to the indorsement of the levy upon the writ under which appellant claims.

It is insisted by appellant that the levy upon the writ under which appellee claims, is void, for want of sufficient description of the property, the description given at the time the levy was indorsed upon the writ and signed by the officer being; “Also, store house and lots.” Without deciding that this description would be sufficient generally, or in any other case, we hold that, under the facts of this case, it accomplished all that the most specific description could have done, so far as the interest of appellants is concerned. It is conclusively proven that Looney, who, at the time he wrote the indorsements upon the writs, was attorney for Schneider & Davis, plaintiffs in the writ under which appellant claims, knew that the officer intended the levy to apply to the property in controversy. His" clients were as much bound by this knowledge of his as they would have been had the fact been communicated to them personally. (Givens v. Taylor, 6 Texas, 315; Van Hook v. Walton, 28 Texas, 72; Catlin v. Bennett, 47 Texas, 171; Harrington v. United States, 11 Wallace, 356; Story on Agency, sections 24, 140; 1 Story’s Equity Jurisprudence, section 408, and note.)

It clearly appears from the evidence that one of the attorneys for plaintiff in the writ under which appellee claims, gave Jeremiah Riordan actual notice in March, before he purchased in June, that the writ under which appellee claims had been levied on the property. We think, therefore, that the court did not err in finding that Riordan was not an innocent purchaser.

Appellants contend that the court erred in overruling their objection to the testimony of the witness Looney, given on cross examination, “because there were no allegations in appellee’s pleadings to authorize such evidence.” The witness was introduced by appellant, and had testified to having written the levy and return on the writ under which appellee claims, and that there was no description given of the property in the levy at the time it was signed by the officer, other than “store house and lots.” Appellee had alleged in his supplemental petition, that plaintiff in the writ under which appellant claims had notice of the prior levy of the writ under which appellee claims, and that Jeremiah Riordan had notice. The testimony was admissible under the allegations in explanation of qualification of statements made by the witness on his direct examination, as it was also for the purpose of proving notice upon clients of the witness. (Givens v. Taylor, 6 Texas, 321, and authorities, supra.)

It is insisted by appellant, that the laches of plaintiff in the writ under which appellee claims, in failing to have it returned until January, 1883, was a forfeiture of the levy as to appellant. It appears that the attorneys for plaintiff in the writ made repeated efforts to have it returned by the sheriff of Mitchell county, and in a contest upon that issue between the plaintiff and defendant in that writ, this court held that the lien was not lost. (City Bank v. Cupp, 59 Texas, 268.) The plaintiffs in the writ under which appellant claims, and Riordan, the purchaser thereunder, both had notice of the prior levy of the writ under which appellee claims, and we conclude that the lien was not forfeited.

We find no error in the record that we think requires reversal, and it our opinion'that the judgment of the district court should be affirmed.

Affirmed.

Opinion adopted November 18, 1887.