Ross v. Lister, 14 Tex. 469

Ross v. Lister

14 Tex. 469 | Tex. | 1855

Wheeler, J.

We are of opinion that the Court did not err in holding that property reserved by law for the family and exempt from execution, was not subject to be levied on or-*474taken in execution, though with the consent of the head of the family. The fact that the horse in question was so exempted, was a sufficient excuse for the Sheriff, for refusing to levy upon the horse. The two houses and lots were subject to the lien of former judgments ; besides, one of them did not, at the time, belong to the defendant in execution; and the other was not ■of value sufficient to satisfy the execution, or any considerable portion of it. And as to the two hundred acres of land there was an entire failure of proof. The only remaining property, and indeed the only property unincumbered, which the defendant appears to have had subsect to execution, besides the negro which was levied on, was the buggy ; and this was not of value sufficient to satisfy the execution. The defendant, therefore, having had the opportunity afforded him, of pointing out, and having failed to designate a sufficiency of other property, it became the duty of the Sheriff to levy the execution upon such property of the defendant as he could find, which was subject to execution, and the levy upon the negro was therefore legal and proper, though the other property had been previously tendered by the defendant, to be levied on, it not being sufficient. But it is said, that though the property tendered (the buggy) may not have been sufficient to satisfy the execution, still the Sheriff should have received and first sold it, and applied the proceeds as far as they would go in satisfaction of the execution, before selling the slave ; and in this we should agree with counsel, if the tender of the buggy had not been coupled with the condition of releasing the levy upon the slave. But, as it was insufficient, the officer was not authorized to accept it with that condition. If a sufficiency of other property had been tendered, even after the levy upon the slave, it ought to have been accepted as a substitute, any time before advertisement of the sale]; or if less than sufficient had been tendered unconditionally, it should have been received, and the proceeds of its sale first applied in satisfaction in so far, of the execution. But the officer was not at liberty to release the levy upon the slave, unless a sufficiency of other property had been *475tendered; and as there was not, he was acting clearly within the line of his duty, to retain the levy upon the slave. And this opinion disposes of the only question in the case ; which is, whether the slave was rightfully taken in execution, under the circumstances. We are of opinion that he was; and in the view we have taken, it is not material to inquire whether there was error in the charge as to what would be a sufficient tender, or pointing out of property by the defendant in execution ; since it is evident a sufficiency of property was not pointed out in any manner, and that which was pointed out was coupled with a condition, which the officer could not accept. Unquestionably the party exercising the privilege of pointing out property, must, if required, put the officer in possession of it, by such act of giving possession as the nature of the case will reasonably admit of. He must give the officer the control of the property, for the purposes of the sale and delivery of it to the purchaser. But in this case, there was no question between the officer and the defendant in execution, as to the possession of the property pointed out. But the question was as to its sufficiency to satisfy the execution, and excuse the officer from making or retaining the levy upon the slave. As it evidently was insufficient, the question was rightly adjudged against the defendant in execution.

This Court will not, in general, revise the judgment of the District Court in giving or refusing damages upon the dissolution of an injunction ; unless there shall appear to have been manifest error or mistake of law (Fall v. Ratcliff, 10 Tex. R. 291,) which does not appear in the present case. The judgment is affirmed.

Judgment affirmed.