Wolf & Sons v. Taylor

Citations

• 68 Tex. 660
• 5 S.W. 855
• 1887 Tex. LEXIS 747

Syllabus

<p>1. Attachment—Lien—Sheriff.—The appellee, Taylor, while he was a sheriff, levied an attachment at the suit of appellant, on counters and shelving in a store house. The lot, house and stock of goods therein were already held under former attachments, to satisfy which they were sold by the sheriff’s successor in office, to whom the counters and shelving had not been turned over, and who had not taken possession because the doors of the house were looked. Neither the defendants in attachment nor any other person claimed or asserted any right adverse to that of the attaching creditors, to sell the same. In a suit by the attaching creditor against the sheriff who levied the writ, and his securities, to recover the value of the property seized, on the ground that the debtor was insolvent,—that the property had passed from the possession of the sheriff, and the plaintiff’s security had been destroyed, held:</p> <p>(1) The claim of no third party intervening, the property might still have been sold to satisfy appellant’s lien.</p> <p>(2) The fact that the purchaser of the goods, and the store house in which the counters and shelving were, went into possession thereof and used the latter for his convenience, constituted him a custodian, under the sheriff, of the property levied on, and not an adverse claimant thereof.</p> <p>(8) There having been no adverse possession or claim to the property seized, there was no abandonment or loss of lien as between the sheriff and the attaching creditor.</p> <p>(4) The statutes (Rev. Stats., arts. 1458, 1459) requiring the sheriff to turn over property to his successor, do not refer to the character of property above described.</p> <p>(5) It was the duty of the sheriff’s successor to execute the mandate of the court and sell the property, and his failure to do so could not be excused on the ground that his predecessor in office had failed to formally turn over to him the property.</p> <p>(6) The sheriff who levied the writ was not liab