Meuley v. Zeigler , 23 Tex. 88 ( 1859 )

Bell, J.

We are of opinion that the return of the sheriff upon the attachment, in the case of Meuley against Hoenig, was not such a return as would create a lien upon the property in question, in favor of Meuley, against a purchaser, without actual notice, that the attachment had been levied upon the property. The return of the sheriff was as follows: “ Received, June 17th, 1853; levied, same day, on lot No. 5, in block No. 12, in presence of R. S. Rankin, J. B. McCown, and Nelson Vosburg, with the improvements.” Without parol evidence to render this return more certain, it would be impossible to ascertain, from the return itself, upon what particular property the writ was levied. The return is also defective, in not stating that the property levied on was levied on as the property of the defendant in the attachment.

It is only by virtue of the statute authorizing proceedings by attachment, that the court is empowered to decree the sale of the particular property which has been attached. In decreeing the sale of the attached property, the court proceeds upon the evidence furnished by the officer’s return, that the property is, in fact, the property of the defendant. It very seldom happens, that evidence other than that furnished by the return upon the writ, is produced, to show to the court, that the property which has been attached is the defendant’s property. Where real property is ordered to be sold by the decree of the court, in suits by attachment, the return of the officer upon the writ, becomes important, as a link in the chain of title of the purchaser: and, for this reason, the return should be certain in itself, and should also show that the property levied on was attached as the property of the defendant.

This point was fully considered by the Supreme Court of Iowa, in the case of Tiffany v. Glover, 3 Iowa, 387; (quoted by Drake in his work on Attachments, page 238.) In that case the court said, “ In proceedings in attachment, the jurisdiction of the court is obtained by special authority, derived' from the legislature, and hence the doctrine of presumption, as applicable to courts, in the exercise of common law powers, cannot apply. In attachments, as we have said, it is the levy which confers jurisdiction, and if this appears defective, it cannot be obviated by legal intendment, or covered by the favor usually extended to courts in the exercise of their ordinary jurisdiction. This first step, necessary to confer power upon the court to charge the land, must be correctly taken, or all subsequent proceedings under the attachment will be coram non judice, and void. The sheriff, under the statute, is only authorized to attach the property of the defendant. It should appear affirmatively, upon his return, that, in this particular, he observed the statute. The sheriff should have returned, that the property attached, was attached as the property of the defendant. In no other way could the court legally know the fact, and not until this fact was before the court, could the court proceed against the land, as the land of the defendant. If the property of the defendant was not attached, there was no lien, there was no levy : and as the fact, that it was attached as the property of the defendant, was essential to constitute a levy, such fact could not be established by extraneous evidence dehors the return.” These views are said to be in accordance with the doctrine of the courts of Virginia, Kentucky, and Missouri, in regard to attachments of personalty. (Drake on Attachments, § 238, and cases cited in the note.)

We are of opinion, that the failure to describe the property levied on with sufficient certainty to identify it, and the failure to state in the return that the property levied on was attached as the property of the defendant, are defects of so grave a character, that no lien upon the property was created by virtue of the attachment; at least, as against a purchaser from the defendant, without actual notice of all the proceedings. How far the return might have been amended, so as to make the attachment operative as between the original parties, is a grave question, and one which need not now be discussed.

It is not pretended that Zeigler had actual notice of the levy of the attachment upon the property, before he purchased it from Hoenig. But it is contended, that he consulted Merriman about the title to the property; that Merriman was Hoenig’s attorney in the attachment suit, and had knowledge of the levy of the attachment upon the property in controversy; and that Zeigler is, therefore, to be charged with notice. The principle is undoubtedly a sound one, that a principal is generally chargeable with notice to his agent. But this principle cannot be stretched so far, as to charge every man who consults an attorney about the title to land, with all the knowledge which the attorneymaypossessaboutthe matter concerning which he is consulted.

There is only one other question in the case which need be noticed. It was objected, that the deed from Hoenig to Zeigler was inadmissable in evidence, inasmuch as it had no subscribing witness, and therefore could not be proved by a subscribing witness. The deed was acknowledged by Hoenig before a notary public, but had no subscribing witness. The .deed was valid without subscribing witnesses, having been acknowledged by the grantor before an officer, authorized by law, to take his acknowledgment, and to certify the same. (See Hartley’s Dig. Art. 2777.) The deed being valid, and effectual to pass title, it was competent for the party offering it in evidence, to prove its execution, either by the grantor, if he were not interested in the suit, or by any other person who saw the deed executed.

We think there is no error in the judgment of the court below, and it is affirmed.

Judgment affirmed.