Hamburg v. O. P. Wood & Co.

Citations

• 66 Tex. 168
• 18 S.W. 623
• 1886 Tex. LEXIS 474

Syllabus

<p>1. Trial of right of property—Possession—The statute regulating the proceeding for the trial of the right of property contemplates actual seizure of the subject of the levy. Although the levy be upon an undivided interest, yet if the defendant in the writ be entitled to such possession, the officer may take possession of the whole of the levy. The burden of proof at the trial is determined by ascertaining from whom the officer took possession.</p> <p>2. Same—Undivided interest—Seizure—By seizing the whole under a levy upon an undivided interest, the officer affirms that possession of the whole is an incident of the right to that levied on ; and a claimant, under the statutes, of that levied on, acquiesces in that affirmation. For all the purposes of the proceeding instituted by the claim, the interest in controversy is the whole subject matter. (Authorities discussed.)</p> <p>3. Same—Co-owners—In case the owner of the interest not levied on disputes the right of the officer to possession of the whole property, he may claim or sue for damages. If the whole of the property be levied upon, the several co-owners thereof might be compelled to act in concert in asserting their rights ; but in case of levy upon an undivided interest, the owner thereof may maintain his right, independent of his co-owners.</p> <p>4. Same—Affidavit—The affidavit of a claimant of an undivided interest in property seized did not state that the interest claimed was that levied on, nor that the interest in the property not claimed was not owned by the defendant in the writ. Held, The sheriff might have refused to deliver the property to the claimant; in doing so he assumed responsibility for the fact that the interest claimed and that levied on ivere identical. But the affidavit was not a pleading. It could not affect the issues required to be made up between the plaintiff and the claimant.</p> <p>5. Same—Statute construed—The owner of an undivided interest levied upon in property seized, may