White v. Graves

15 Tex. 183 | Tex. | 1855

Wheeler, J.

The ground mainly relied on for a reversal of the judgment is, the refusal of the Court to give the second instruction asked by the defendant. But, in this, we are of opinion there was no error, for the reason that the instruction asked was not warranted by the evidence. The proofs in the case did not, in our deductions, warrant the opinions of fact, which the instruction asked the Court to assume as proved ; that is, that the plaintiff in execution “ by long indulgence of “ the defendant Crosby, permitted the execution to be held up “ for an unreasonable length of time,” &c. There are circumstances in the case which may very well explain any apparent laches on the part of the plaintiffs; and one is, that the plaintiff in execution died shortly after the return of the execution. There is no proof of any special indulgence extended by the plaintiff in execution to the defendant Crosby. The execution referred to in the statement of facts, which appears on its face not to have been the first issued, authorized a levy upon the property of either of the defendants. It appears to have been first levied upon two hundred acres of land as the property of Crosby, which was sold ; and the execntion, not being satisfied, was afterwards levied upon thirty six-acres of land “ out of Andrew Hiller’s league of land, granted to him by the Mexican Governmentbut it does not appear by the levy, nor was, it otherwise in proof, whether this land was levied on as the property of Crosby or White: and there is no more ground to presume that it was the property of one than the other. It does appear that the sale was stopped by order of the plaintiff’s attorney, acting under the directions of the plaintiff; and that this was done at the instance of Crosby. But it does not follow that it was done for the purpose of extending indulgence to Crosby, rather than White; for it may have been White’s land that was levied on, for aught that appears, if indeed it was the land of either defendant. There is, therefore, no proof that indulgence was extended to one of the defendants in execution, rather than the other. We deem it unnecessary to inquire whether in a different state of case, the instruction asked would have been correct in point of law.

A levy upon personal property sufficient to satisfy the exeecution, has been held, as between the debtor and creditor, a satisfaction of the debt. (4 Cowen, 417 ; 12 Johns. R. 207 ; 4 Mass. R. 403.) The reason given is, that by means of the levy, the debtor is deprived of his property. But it is held otherwise of a levy upon land. For the debtor, notwithstanding the levy, holds the title and possession, and is in the enjoyment of the profits of the land. The title does not pass by the levy; and there is no satisfaction until sale. (14 Wend. R. 260 ; 1 Penn. R. 425.) The levy, therefore, in the present case, was not a satisfaction of the judgment, if the land levied on were of value sufficient; and there was no evidence of its value.

We are of opinion there is no error in the judgment, and it is affirmed.

Judgment affirmed.