
    Bennett and Wife v. Gamble, Adm’r of Richarson
    Appeal from Victoria County.
    An execution which is merely voidable ban only be objected to by one of the parties to it; but an execution which is void may be objected to by any person whose interests are affected by it. [Overruled, 10 Tex. 140.]
    If an execution issue before the death of one of the parties, it is not abated by the death; but if it be returned not satisfied, and an alias has to be resorted to, the legal representative of the deceased must be made a party; except where a lien has been acquired by the first execution. In that case, the lien may be preserved by the issuance of an alias, etc.
    If no lien was acquired under the first execution, or being acquired, was lost, the judgment would have to be revived in the .name of the representative.
    A lien once acquired will be lost by the want of due diligence to preserve it. Permitting one term of the court to elapse without renewing the execution will not be exercising that diligence which will preserve a lien, and the lien being lost, there will be nothing to support an alias, in the name of the original party. [7 Tex. 269; 9 id. 475.]
    The facts of the case are given by Mr. Justice Lipscomb in the opinion.
    Howard, for appellant.
    1st. It is submitted that under our statute, the amendment asked for should have been allowed.
    
      2d. The refusal of the court to charge that two years’ possession, under the sheriff’s sale, was a good title under the statute of limitations, was erroneous.
    3d. The charge of the court that the title under the sheriff’s sale to Bennett was void cannot be sustained. . The levy on the slave was good. The sheriff took her into possession, but left her with the defendant in execution until a bond could be executed. The defendant was a mere bailee of the slave. Instead of executing the forthcoming bond, he fraudulently ran the slave off, to avoid the sale. Ilis fraud precludes him or his privies from alleging any illegality in the sale, either from want of appraisement, or the presence of the property on the day of sale. The only party that could have set up this illegality was the plaintiff in the execution, and he waived it by directing that the sale should be made, whether the property was present or not. After the death of the plaintiff in execution^ his admin-' istrator sues another execution and levies it upon the property in the hands of the innocent purchaser. To tolerate this course would be to encourage a gross fraud. The plaintiff might have proceeded against the sheriff for negligence or have directed a levy on other property, or as he did do, order the property sold whether produced or not; and having chosen the latter course, he cannot be permitted to treat the sale as a nullity; neither can his administrator; especially when no fraud or improper conduct is alleged on the part of the purchaser.
    The indorsement of the clerk on the execution states that it was entitled to a credit of $10, and therefore the presumption must be, that the proceeds of the sale were paid to the plaintiff in execution, which would estop him.
    The sheriff is the agent of both parties, appointed by law; and when the rights of third parties do not interfere, they may control his action. In this case, as the fraud of the defendant put it out of his power to dissent, the agreement “of the plaintiff to the sale was sufficient.
    It should be observed that the execution law of 1840 does not require the property to be present when sold.
    4th. The absence of the property would not render the sale a nullity, if there had been no consent. If the property brought less on that account, the remedy was against the officer.
    There is no proof that the slave did not bring her value, and the court cannot presume it. The price was perhaps low for a sound slave, six years old; but the court has no evidence that she was sound or worth any more. There is, therefore, no proof of damage arising from the conduct of the sale. So the sale would be good without notice; 1 Nott & McO. 12; 4 Wheat. 503; 16 J. R. 537; 8 id. 366; 8 Cow. 182; and 5 Terg. 215. It would also be good without appraisement, especially when it had been prevented by the fraud of the defendant in execution. It does not appear that there was no ap-praisement, and if it was necessary, it will be presumed in favor of the regularity of the proceedings of the officer. If the claim on which the judgment was had originated before the appraisement law, as must have been the case, then according to the recent decisions of the United States supreme court, no appraisement was necessary.
    The sheriff’s deed is evidence per se of regularity, 20 J. R. 49; 7 Wend. 83; 1 Cow. 481; 7 id. 747, and must hold as to the appraisement.
    5th. The motion to quash the second execution ought to have been sustained. . Pi’ocess cannot be prosecuted in the name of a dead man. It was not competent evidence to support a levy, and ought to have been ruled out.
    
      Robinson and Fischer, on the same side, for appellant.
    Bennett was an innocent purchaser, and the sale to him cannot be rescinded, unless the purchase money and all damages be refunded. 4 La. Cond. 213; 2 id. 247; 10 Pet. 476.
    Lynam, the defendant in execution, is the only person that could question the validity of the sale by the sheriff. Ponbl. Eq. 668.
    The court erred in deciding that the statute of limitations did not apply. 4 Laws, 163; 4 La. Cond. 280; 2 id. 20, 460, 496; 3 Little, 136;' 5 Wend. 20; 6 id. 475; 20 Johns. 40.
    Bennett is not a trespasser. Two years possession without force or fraud gives a right. 1 La. Cond. 362; 5 Martin, 221; 11 Wheat. 361; 6 Pet. Cond. 350-351.
    
      J. Webb, for appellee.
    The principal question arises upon the validity of the sale made by the deputy sheriff in 1840, for it is under that sale alone, that the appellants set up title to the property.
    The judgment of Richardson v. Lynam et al. is admitted by all parties to be valid. The levy under the execution was legally made upon the property of Lynam, and it is only the disposition of that levy that is called in question.
    The appellee contends that the sale did not transfer the property. It was made in violation of the prohibitions of the statute and was therefore incapable of forming the basis of any legal act.
    The act of February 5, 3840, p. 93, was the only law governing sales under execution, in force at the time of this sale. The 15th section of that act requires that the property shall be appraised on the day of sale. “The assessment must be reduced to writing, signed by the appraisers or a majority of them, and be returned with the execution.” The 16th section provides that “ improved lands or slaves must bring two-thirds of the appraised value, or no sale shall be made for cash.”
    
    The record shows there was no appraisement of the property — it is not an inference derived from the absence of an appraisement; it is positively proved by the deputy sheriff who made the sale, and it was within the knowledge, of the purchasers.
    It is a rule of law that a statute title must show that everything which the law deems essential to the transfer of the property was done and it must appear on the record to have been done. 14 Mass. 20,29; 2 Mason, 71. In this case it is affirmatively shown that the requirements of the statute were not complied with. The appellants introduced the return of the deputy sheriff on the execution as a muniment of title, and that return shows a gross violation of the provisions and requirements of the statute.
    The sale of “improved lands and slaves ” not being according to the course of common law, the statute authorizing it must be strictly pursued or the sale is void. 17 Mass. 243; 14 Johns. 353.
    The sheriff had no authority under the law to sell the property for less than two-thirds of its appraised value for cash, and a sale made without■ authority conveys no right ,or title to the purchaser. The purchaser is bound to know the law. 7 Johns. 536; 9 Pet. 243.
    The sale of the property when it was not in view of the bidder was fraud in law and passed nothing to the purchaser. 14 Johns. 351; 17 id. 116,121.
    The original levy vested the property m the sheriff,, as the agent of both creditor and debtor, and the illegal or pretended sale, being incompetent to divest it to the injury of the creditor, it remained in contemplation of law, in the sheriff. The possession of Bennett was, in law, the possession of the sheriff, because the fraudulent abduction by the creditor, and the acquisition of possession by Bennett under that abduction could not divest the sheriff of his right of possession, as the agent of the creditor. "When he received the alias execution, therefore, it was his duty to take the property and sell it. The second execution in its legal effect was nothing more than a venditioni ex-ponas, to complete what had been commenced under the first.
    2d. There was no error in the court refusing to permit the plaintiffs to amend their petition, by alleging the statute of limitations in support of their title, after both parties had announced themselves ready for trial. The 4th section of the act “amending the judiciary laws of the republic,” Acts 2d Con. p. 95, declares, “ that no amendment shall he permitted in any pleadings or other proceedings in any cause after issue joined, except,” etc. The 12th section of the act of February 5, 1810, “ to regulate proceedings in civil suits,” vol. 4, p. 89, does not conflict with or alter this provision of the law. It authorizes amendments under the direction of the court, but not in violation of law.
    Besides, the permitting of amendments is a matter entirely within the discretion of the court, not only under our statute, but upon general principles of law, and a refusal to permit an amendment cannot be assigned as error. 5 Crunch, 15; 6 id. 253; 9 Wheat. 576; 11 id. 280.
    3d. Nor was there error in the court’s refusal to quash the execution. The pleadings in the cause do not show that (Richardson, the intestate of the appellee, died before the alias execution was sued out. But if he were dead at the time the alias was issued, then it is submitted that under the common law, which was adopted anterior to that time, the execution would be sustained. At common law an executor may sue out execution upon a judgment rendered in favor of his testator, previous to his death, and particularly, if onzfi. fa. had issued during the life of the testator. 2 Jacob, p. 488; 1 Tom. 708; 2 Bae. Abr. 693-4; Con. Dig. 312, No. 15. Our statute does not change this common law principle.
    4th. There was no error in the refusal of the court to instruct the jury that two years’ peaceable possession of the slave would give the plaintiffs a good title; 1st. Because the plaintiffs did not set up title under the statute of limitations; and 2d. Because had they done so, the statute would have sustained it. A negro slave is not such property as is contemplated by the term “personal property,” in the first section of the statute of limitations. All our statutes regulating the administration of estates and sales under the execution, etc., recognize and treat slaves as a distinct species of property, from what is generally understood and known as personal property.
    But if we regard slaves as personal property, within the meaning and contemplation of the statute, still, it operates only as a bar to the recovery of such property after the limited period. It does not give title to the property — it only relates to the possession. If a party come into court to assert a title, he cannot support it by mere possession, under the statute of limitations.
    Besides, we contend that the possession of the appellants in this case was a tortious one, acquired under the fraudulent abduction of the property from the sheriff by Lynam, and as such, it would never be protected by the statute.
    5th. 'Whether there was error in the instruction given by the court to the jury, “ that the title of the plaintiffs derived from the sale made by the deputy sheriff was void” or not depends upon the validity of that sale; and we think we have shown that it was wholly illegal and void, and passed nothing to the purchaser.
   LipscoMb, J".

Bennett and wife filed their petition against Gamble, administrator of Richardson, alleging that they are the owners, and in possession of a certain negro girl named Grace; that the said girl, whilst so in their possession, was levied on by an execution in favor of the said Gamble, as administrator of Richardson, against one William Lynam et ah, as the property of the said Lynam; that the petitioners had given bond as required by the statute, and they pray that Gamble be made a defendant; that he be cited to appear at the next term of the district court, then and there to answer the same; that a jury be impaneled to try the issue to be made, and pray for damages and costs. A summons was issued, which, with a copy of the petition, was- served on Gamble, who appeared and answered, by denying the negro to be the property of Bennett and wife. On the trial, two bills of exception were taken by the plaintiff • — ■ the first, to the refusal of the judge to permit an amendment to the petition, averring a right by prescription in the plaintiff to the girl, the subject of the controversy.

The second, to the overruling the motion of the plaintiff to quash the execution, marked B, because Gamble, the administrator had not been made a party to it. The jury found a verdict, “that the slave, Grace, was subject to the execution.” The plaintiff moved for a new trial, on the following grounds. 1st. That the verdict is contrary to law and evidence. ‘ 2d. The court erred in refusing to instruct the the jury, as asked for by the plaintiff, that two years’ peaceable possession would give the plaintiff title; and, 3d. The court erred in instructing the jury that the title of the plaintiff derived under the sheriff’s sale was void. This motion was overruled, and the plaintiff excepted to the same. The following is substantially a statement of facts sent up to this court: “An execution in favor of Yarlin Richardson against Lynam et al. was levied on the girl Grace; she was claimed by the plaintiffs and bond given pursuant to the statute, the issue being the right of property.” It was proven that the negro girl levied on was the property of Lynam, one of the defendants in tbe execution, after the rendition of the judgment in favor of Richardson, and that she was levied on by the sheriff of Yietoria county, in the life time of Richardson. At the time the levy was made, Ly-nam requested of the sheriff the privilege of replevying, and for that purpose, induced the sheriff to leave the girl and go with him a short distance to town, to execute the bond, and obtain the surety. Whilst in town, Lynam eluded the sheriff without replevying, went home and ran off the negro and secured her. The sheriff about this time left for the army, and placed the matter in the hands of his deputy, who, being sworn as a witness, stated that Richardson, the plaintiff in execution, leaving town for the west, and aware of the fact that the negro was not in possession of the sheriff, instructed him to proceed and sell the property. On the day prior to the day of sale, he, the deputy sheriff, informed Lynam that the girl would be sold on the the next day, and requested him to bring her in, which he refused to do. The witness did not remember whether the girl was advertised or not, but on the day of sale, he put up to the highest bidder, the chance of the girl without appraisement; that she was not present or in view of the bidder or under control of the sheriff at the time, and the chance of her was purchased by Bennett and Prescott for ten dollars. The deputy sheriff executed a bill of sale, a copy of which accompanies the statement of facts. The judgment in favor of Richardson was admitted by both parties to be valid. The execution under which the first levy was made and the copy of the sheriff’s deed, and the indorsement of the sheriff, was ordered to be certified to the supreme court. It was proven that the girl was in the possession of Bennett and wife, from the fall or winter after the purchase was made, and continued in their possession up to the time when the last execution was levied. How they obtained her did not appear in evidence; the girl was about six years old at the time of the levy. The execution was issued on the 1st of May, 1840; sheriff’s retnrn, “came to hand 2d day of May, 1840; executed on the 5th day of May, on one negro girl named Grace, about six years of age, and one house and farm lot. . (Signed) Datet. MoDoNald, Sheriff Y. 0.”

“ The above negro girl was sold to Messrs. Bennnett and Prescott, on the day advertised. Dan. McDokald, Sheriff Y. C.”

The deputy sheriff’s bill of sale bears date on the 7th July, 1840. The last execution bears date ón the 7th July, 18If, and on its face, appears to be an original i/n the name of Varlin llicharson. and eme-ries no evidence on it that it was wilder the cont/i'ol of Gamble. We will first consider whether the court erred in overruling the plaintiff’s motion to quash the execution last issued and levied on the negro girl in tbe possession of Bennett and wife. There is a distinction between'a void execution and one that is only voidable. If only voidable from some defect in the process none but a party can except to it. But if it is absolutely void any person claiming an adverse interest to it can make the objection. This question was very fully discussed in the case of Collingsworth v. Horn, 4 Stuart and Porter, 237, and the above distinction acknowledged by the court. If then the execution under consideration is void, the claimant could not be called on to show title against it, because no property, could be subject to sale under a void process. The common law doctrine is believed to be well established, that an execution valid at the time it is placed in the hands of the sheriff cannot be suspended by the death of either of the parties, but the sheriff must go on to execute it. 2 Sel-lon’s Practice, title Executor; Bac. Abr. title Executor. And the reason assigned is, that as it is an entire thing, and having properly issued, its functions must be performed by the sheriff in obedience to its mandate. But if the fieri facias bears test after the death of the plaintiff or defendant it is void.'’ An original fieri facias at common law bore test the term at which the judgment was obtained and ran from term to term; that is to say, it issued from one term and had to be returned to the succeeding term. It seems to me that from the above rule the conclusion would be that, although the death of a party after the execution has issued will not abate it for the above reasons, that-it must go on and perform its appropriate functions. Yet if the money is not made and the process returned not satisfied, and an alias has to be resorted to, the legal representative of the deceased must be made a party. 3 Atk. 254. To this there is an exception — where a lien has been acquired, that lien must be kept up by the issuance of an alias admitting that the first execution was properly issued and that it acquired a lien such as could be kept up by an álias. Does the case under consideration come within the rule and has it been so continued as to sustain the last one issued? For if it can be-sustained without the name of the representative, it is solely on the ground of keeping alive the'lien. If this has been lost, the judgment would have to be revived in the name of the representative.

The statute in force at the date of the first execution in May, 1840, gives a lien on all the property of the defendant vn the county where the judgment is rendered, from the date of the judgment, provided, said lien shall cease to operate if execution he not sued out within twelve months from the date thereof and due diligence he not used to collect the same. 4 Laws of Texas, sec. 12, p. 95. The lien given from the date of the judgment has two conditions annexed, the issu-anee of execution within the time limited, and due diligence in collecting the same. The lien is given bj the observance of the first,' but it can only be retained by the latter. Would it be anything more than a reasonable construction of the term, due diligence, to say that after the return of the first execution not satisfied, the party would be required to try another writ, and to continue his efforts from term to term until he obtained satisfaction? This was the common law diligence necessary to keep alive a judgment. If there was a failure, of a single term after the original fieri facias had been sued out, no execution could issue, and consequently the judgment had to be made the foundation of another suit and judgment until the statute of Edward I. gave a scire facias to review a judgment. See Sellon and Bacon, cited above. With us the judgment can be revived by a scire facias. But to return to the execution under consideration. If due diligence has not been used the lien is lost, and the lien being gone, there is nothing to support an alias in the name of the original party and the judgment must be revived in the name of the legal representatives.

In the case before us the first execution issued in May, 1840, the judgment was obtained in April, so that the lien was secured so far as it depended on the issuance of the execution. Our laws ¿require that an execution should be returned to the succeeding term, which would have been in October. The process would then ha functus officio, it would then give no effect to the lien of the judgment, and that dormant lien could only be again brought into life and energy by an alias, or, in the words of the statute, by due diligence; and we have construed that diligence to be the use of the means given by law to keep it alive. If this was not employed the lien, it seems to me, was gone; and our statute being silent as to the mode of creating a new one it would be effected alone by the rules of the common law. The second execution, the one that has been the occasion of the present contest, was not issued until the 7th of July, 1843, more than three years after the issuance of the first, and near three years from the time when it was returned and had performed its office. It certainly cannot be supposed after such a lapse of time that the judgment was only dormant, and only required the issuing of another execution to arouse it into life and vigor. The reason assigned at a most remote period, even as early as Edward the First, why a party ought not to be permitted to hang back on his judgment or on a defunct execution and still retain his lien was said to be, that it would restrain trade and be productive of fraud in the selling and transferring of movable property; and it was said to be unreasonable that because there had been a judgment against a man, all his property should be tied up and no one permitted to purchase. Hence the common law presumption, if execution had not been sued out within a year and a day, that the debt had been paid, and also when sued out, unless it was kept alive by the issuing of a continued succession of executions which must appear on the docket. This presumption runs back into the history of the jurisprudence of our ancestors to a period when there was comparitively but little trade; and it would appear strange if in comparing the present condition of their descendants with their almost countless millions embarked in trade, the same reasons should not now be felt with ten fold force. As it has been before seen, the last execution was not sued out until near three years after the first had been returned. A period beyond the time that legislative wisdom has adopted as a bar to some of our most important rights was certainly far from the use of due diligence. The conclusion is, that diligence was not used to keep up the lien. That the last execution having issued as an original without any reference to the first, after such a lapse of time, and the lien not having been kept up by the use of the means the law allowed, no execution could have issued on the judgment until it had been revived in the name of the legal representative of Bicharson; and therefore the execution was void and ought to have been quashed.

We will now inquire into another point made in the court below and presented by the bill of exceptions.

That is, the refusal of the court to permit the plaintiffs to amend their petitition so as to set up their right by prescription to the slave in controversy. The proceedings in the court below were intended to be under the provisions of our statutes for the trial of the right of property. Laws of Texas, 1840, page 64.

By that act all that was required was simply an issue to be made up, as we believe, under the direction of the court; because the form in which it should be presented depended on the fact of the property levied on being in the possession of the defendant in the execution, or with the claimants. If with the former, the claimant assumes the affirmative; if with the latter, the onus is thrown on the plaintiff in the execution. This course was not pursued; but the claimants, after giving bonds under the statute, commenced an original and distinct suit by petition and summons, and the plaintiff in execution filed the answer. This course of proceeding certainly was never contemplated by the statute, and is productive of delay and unnecessary expenses. The claimants have not set up prescription in their petition, and if the case was to be tried as an ordinary one, there was no error in confining the plaintiffs in their proof to their averments, nor in charging the jury that under the pleadings they could not recover by prescription. The evidence, however, showed that the plaintiffs were in, possession of the property when the exeeiition was levied. This, under the statute would have really made them the defendants, and thrown the’affirmative on the plaintiff in the execution; and, as defendants, they certainly could have offered the defense of prescription without the necessity of presenting the question, whether such prescription could give a right. The proceedings are so irregular, and such a departure from the statute, that it does seem that when the court was asked permission to amend, although it was not until after both parties had announced themselves ready for the trial, it ought to have been allowed. "VVe are fully sensible that we should act very cautiously indeed in revising the decision of the court below on a question of amending the pleadings; because it is, in most cases, so much, a matter for the sound discretion of the court that it would be extremely difficult for us to determine from the record, whether it onght to have been allowed. We have no doubt of our powers to do so when a proper case is made out on the record. The proceedings and the statement of facts show conclusively that the legal rights of the plaintiffs were not put in issue; and an amendment ought to have been allowed on such terms as would have been just to both parties. We do not decide whether prescription under our statute would give a right of action, or would only be matter of defense against one, as we do not believe the question is necessarily presented; because, under the circumstances the claimants were entitled to all the rights of a defendant in possession, when possession was sought to be disturbed. We will notice one other point in which it is supposed the court below erred, that is, in charging the jury that the claimant’s title from the sheriff was void. We do not design to discuss all the legal consequences growing out of the official conduct of the sheriff, connected with the execution of the first fieri facias; because the parties to be affected are not before us, and should not be condemned unheard. The sheriff’s return is before ns, showing the levy and a sale of only the slave; although other property is levied on, no account is given of it, but he does not appear to have asked leave to correct his return; he seems willing to abide by its legal consequences. Lynam, the defendant, from whom the slave was taken on the first execution, and who, if anybody, was entitled to the benefit of the law of ap-praisement, is not heard to complain of a deprivation of that right. We are not informed by the record of any facts, nor is there any principle of law in the face of the sheriff’s return that would authorIze the title so made by the sheriff, to be disturbed by another execution being levied in the same case on the property so sold. Fraud may have been perpetrated, and perhaps was, but from the facts we have nothing to do with it and there can be no question but that the plaintiff in execution has his remedy. It is therefore the opinion of the court that on the following three points, the court below erred: 1st. In not quashing the execution; 2d. In not'permitting the amendments so as to give the claimants an opportunity to set up the defense of prescription; and lastly, in charging the jury that the claimant’s title from the sheriff was void. The judgment is therefore reversed, and the proceedings in the court below set aside down to the bond for the trial of the right of property in the slave claimed, with instructions to the court below to cause an issue to be made up in accordance with this opinion.  