Erwin v. Blanks

Citations

• 60 Tex. 583
• 2 Tex. L. R. 595
• 1884 Tex. LEXIS 6

Syllabus

<p>1. Constitutional law—Jurisdiction.— Construing sec. 8 of art. 5 with sec. 16 of art. 5 of the state constitution, under the rule which requires that a general provision shall yield to a special provision, the district courts have jurisdiction of all suits for the trial of the right of property levied on by any writ of sequestration or attachment, when the property levied on shall be equal to or exceed in value §500. That jurisdiction was excepted out of the jurisdiction given to the county courts by the same article.</p> <p>2. Same — Statutes construed.—Arts. 1117 and 1164 of the Revised Statutes are in accordance with the true construction of the constitutional provisions above referred to; and so much of art. 4831, Revised Statutes, as attempts to confer jurisdiction in such cases on the county court, when the property is of the value-of $500, is inoperative and void.</p> <p>-3. Trial of right of property.—A mortgagee, out of possession, cannot assert his claim to property levied on by attachment in the manner prescribed by statute for the trial of the right of property. Following Wright v. Henderson, 12 Tex., 43, and other cases. When entitled to possession, his proper remedy is by a proceeding in equity to establish his right or interest.</p> <p>4. Same.— But if the mortgagee is rightfully in possession, and the levy is properly made by giving notice as required by law, his possession remains, and the purchaser must be the actor in depriving him of it, by redeeming the property from his lien. If out of possession, he may enforce his lien against the purchaser at sheriff’s sale, but cannot set it up in a suit for the trial of the right of property.</p>