Robinson v. Perry

4 Tex. 137 | Tex. | 1849

Wheeler, J.

There is no controversy as to tho facts. They were expressly admitted by tlie answer; and tlie only question is, was the defendant in execution entitled to the benefit of appraisement, as provided by tlie 17th, 18th, and 19th sections of the act of tlie 27th of January, 1842, concerning executions? (Acts of 1S42, 63.) The 21st section of the act declares that the sections above referred to, which provide for appraisement, “shall apply only to debts and other legal liabilities contracted and incurred prior to the first day of March (May) next,” (1842,) “and that all sales by virtue of executions issued on judgments founded on debts and other legal liabilities contracted and incurred after the first day of May next shall be made for cash, without appraisement; and the clerk or other officer issuing any execution shall indorse thereon whether the sale shall be made with or without appraisement.”

The note upon which judgment in this case was obtained was executed after the- 1st day of May, 1842; and did it not show upon its face that it was given in consideration of a pre-existing' indebtedness, we do not doubt that the execution must have been without appraisement. But it does appear from the face of the note that it was given in consideration of a debt contracted prior to the 1st day of March, 1842.' For what purpose was the date of the consideration thus expressed in tlie note ? It was, we think, to furnish evidence inseparable from that of (lie indebtedness of tlie maker that lie was entitled to the benefit of the statute giving the right of appraisement. The note seems to liave been drawn with a view to the statute, and to have been thus expressed with tlie intention of securing to the party the benefit of its provisions. If so, it is but reasonable that that intention should have effect. It can work no hardship upon tlie plaintiff; for had she sued upon the original consideration, there can be no doubt that tlie right now claimed by the defendant must have been accorded to him. The law requires the clerk to indorse upon the execution whether tlie sale shall be made with or without appraisement. lie can be informed of the facts necessary to enable him to make the appropriate indorsement only by (ho record. Upon all judgments rendered subsequent to the 1st day of May, 1S42, prima facie execution should issue to sell without appraisement; and the only exception is when from the record it appears that the debt was contracted or tlie liability incurred before that time. Such was the present case.

Judgment affirmed.