Harris, Norton & Co. v. Ellis , 30 Tex. 4 ( 1867 )

Moore, C. J.

The receipt of the sheriff, upon which the appellee relies as evidence of the satisfaction of the judgment which he seeks to enjoin, shows that he paid to the sheriff the amount of said judgment in money and a draft on a third party, after the return day of the original execution, and at a time when there was no precept in his hands authorizing him to demand or collect the money to which appellants were entitled by said judgment.

The sheriff becomes the agent of the plaintiff to receive payment of a judgment when an operative execution comes to his hands, and he continues so as long as the authority thus conferred sanctions his action. The right of the sheriff, by virtue an execution, to take possession and sell property of a defendant to satisfy such execution, unquestionably ceases, if there has been no previous levy under it, after • the return day. The right of possession acquired by the sheriff in the present case by the levy was discharged by the delivery bond given by appellee. Until its forfeiture the appellee was entitled to possession of the property for which his bond was given. The possession of the sheriff', by the levy, being divested by the delivery bond, after its forfeiture, he could only reduce the property to possession again by virtue of an operative execution still remaining in his hands. The mere fact of the levy and forfeiture of the bond would not authorize his seizing the property so levied on after the return of the execution under which he had acted, and when he held no process whatever invoking his oficial action in the matter. It follows, therefore, as a necessary consequence, that the sheriff, having no process in his hands or authority to compel a delivery of the property upon which he had levied, he could, after the return of the execution, neither enforce payment of the judgment nor give a discharge from it on payment being voluntarily made to him. (Planters’ Bank v. Scott, 5 How. Miss., 246; Wood v. Robinson, 2 Smedes & Marsh., 271; Walker v. McDonald, 4 Smedes & Marsh., 118; Walker v. Bradley, 2 Pike, 578; Farmers’ Bank, &c. v. Reid, 3 Ala., 299.)

It is also well settled, that appellee’s draft, even if received by the sheriff in payment of the execution, when in his hands for collection, if not specially authorized or accepted by the appellants, would not satisfy the execution or discharge appellee from its payment. (Mumford v. Armstrong, 4 Cow., 553; Codzwise v. Field, 9 Johns., 261; Gasquitt v. Warren, 2 Smedes & Marsh., 514.)

A jury having been waived, and the cause submitted to the court, and the judgment in our opinion being erroneous, it will be reversed, and such judgment rendered in this court as should have been given in the court below; which is, that the injunction be dissolved and appellee’s petition dismissed.

Ordered accordingly.