Raysor v. Reid & Smith , 55 Tex. 266 ( 1881 )

Walker, J. Com. App.

In considering the fourth assignment of error, which presents the proposition that the facts are not sufficient to warrant the judgment, we will recur to. the issues in the case. Both of them, under the evidence adduced upon the trial, practically are but the presentation, in different forms, of the same legal question, viz.: whether the plaintiffs in execution were entitled to levy on and sell, in satisfaction of their debt, personal property of 'the defendant in execution, with notice of the existence of a valid subsisting lien thereon in favor of another, but who was neither in possession thereof nor entitled to the possession at the time of the levy and sale. For, if they could do so, the idea is excluded that the proceeds of such sale may be appropriated to the claimant’s lien.

This question has been well and long settled in this state. It was decided in Wootten v. Wheeler, 22 Tex., 338, that mortgaged property is liable to be sold under an execution against the .mortgagor, subject to the lien of the mortgage, although it contain a power (as was the case in the appellant’s deed of trust) authorizing the sale of the property, by a trustee, upon default of payment by the mortgagor. Chief Justice Wheeler, in the opinion in the case cited, said: “It is the settled law of this state, that mortgaged property is liable to execution against the mortgagor, subject to the lien created by the mortgage.” The mortgagee in that case, by the terms of the mortgage, had power to require the trustee named in the mortgage or deed of trust to sell the property which was mortgaged, on default of making payment of the debt which was' secured by it. The opinion added: “ The mortgagee was not entitled to hold the property, exempt from liability to be taken and sold, subject to his lien, under execution against the mortgagor.” See also Gillian v. Henderson, 12 Tex., 47; Bullard v. Anderson, 18 Tex., 377; Wright v. Henderson, 12 Tex., 43; Baker v. Clepper, 26 Tex., 629.

Clearly the first issue in the case was correctly decided against the appellant; and not less clear is it, that the query propounded in the second issue should be answered in the negative. If the claimant was endangered, in respect to his hen, by the levy which the appellees caused to be made, his remedy was to invoke the equitable powers of the court by an original proceeding. Belt v. Raguet, 27 Tex., 472. Asale of the property, made under' the execution, would convey the interest only of the mortgagor, and would not affect the rights of the mortgagee to enforce his lien against it. The statutory writ given to the lien-holder, of sequestration, and the equitable remedy of injunction, furnish ample means to him to protect himself against danger from another creditor seeking to subject the property to the ordinary process of the law, whenever his rights require protection.

The fifth assignment, that the judgment is excessive, is not well taken. The evidence warranted the judgment of ten per cent, damages to be assessed on the valuation placed upon the property at the time the claimant took the property under his claim bond. It was valued at nine hundred dollars by the sheriff, and the damages were assessed at ninety dollars.

The evidence which the record thus offered was a proper and sufficient basis for the action of the court, as we (commissioners of appeals) have determined in the case of Aiken v. Kennedy, decided at Tyler, 1880, upon the authority of Wright v. Henderson, 12 Tex., 43; Ratcliff v. Hicks, 23 Tex., 173. There was no evidence to rebut, satisfactorily, the correctness of the sheriff’s estimate of value, but the evidence offered on that subject tended rather to corroborate it. The defendant in the execution testified that a storm came the day after the 15th of September, 1875, which injured the cotton considerably, depreciating its value to about seven and a half cents per pound,—to the valuation of thirty-seven and a half dollars per bale. He does not state, however, how much greater was its value at the time when the claimant reeeived it from the sheriff, which was on the 15th of September, 1875, and before the occurrence of the injury to the cotton by the storm, and its consequent depreciation. If it was as seriously injured and as much depreciated as his testimony implies it was, it may well be supposed that the estimate made by the sheriff was a fair and just one. The claim which was made was wrongful, and had the effect to withdraw the property from the custody of the officer, who was bound by his duty to take proper care of the same, and to preserve it from injury. If it had remained in his hands, his care may have prevented the depreciation which occurred. It was within the discretion of the court to determine, under all the evidence on the subject, what value the property possessed, under all the circumstances which attended the levy, considering the nature, condition and situation of the cotton, its delivery to the claimant, and the ability of the sheriff to have preserved it from injury and loss.

There being evidence to support the conclusion at which the court arrived, its judgment will not be disturbed merely because this court might not concur as to the precise amount of the valuation made of the value of the cotton, by the court whose province it was to determine that fact.

We conclude that there was no error in the judgment which was rendered below, and that it ought to be affirmed.

Aeeiemed.

[Opinion delivered May 17, 1881.]