
    J. J. & G. W. Erwin v. J. T. Blanks.
    (Case No. 1713.)
    1. Constitutional law—Jurisdiction.— Construing sec. 8 of art. 5 with sec. 16 of art. 5 of the state constitution, under the rule which requires that a general provision shall yield to a special provision, the district courts have jurisdiction of all suits for the trial of the right of property levied on by any writ of sequestration or attachment, when the property levied on shall be equal to or exceed in value §500. That jurisdiction was excepted out of the jurisdiction given to the county courts by the same article.
    2. Same — Statutes construed.—Arts. 1117 and 1164 of the Revised Statutes are in accordance with the true construction of the constitutional provisions above referred to; and so much of art. 4831, Revised Statutes, as attempts to confer jurisdiction in such cases on the county court, when the property is of the value-of $500, is inoperative and void.
    -3. Trial of right of property.—A mortgagee, out of possession, cannot assert his claim to property levied on by attachment in the manner prescribed by statute for the trial of the right of property. Following Wright v. Henderson, 12 Tex., 43, and other cases. When entitled to possession, his proper remedy is by a proceeding in equity to establish his right or interest.
    
      4. Same.— But if the mortgagee is rightfully in possession, and the levy is properly made by giving notice as required by law, his possession remains, and the purchaser must be the actor in depriving him of it, by redeeming the property from his lien. If out of possession, he may enforce his lien against the purchaser at sheriff’s sale, but cannot set it up in a suit for the trial of the right of property.
    Appeal from Hays. Tried below before the Hon. L. W. Moore.
    In June, 1881, in a suit then pending in the county court of Hays county, wherein appellants were plaintiffs and J. M. and H. M. Adams were defendants, a writ of attachment was issued andi levied upon certain sheep, which were valued by the sheriff at $500. J. T. Blanks, the appellee, made claim June 14, 1881, by making oath and giving bond. The writ with the oath and bond was returned to the county court, but was subsequently transferred to the district court, as it would seem, upon the theory that the county court had no jurisdiction of the subject matter. The district court entertained jurisdiction and overruled a motion to dismiss on that ground.
    March 18, 1882, the cause was tried without a jury, and judgment rendered in favor of the claimant, Blanks.
    Appellee filed a motion to dismiss the appeal upon the ground that the district court did not have jurisdiction of the subject matter of the suit.
    
      Joe H. Stewart and B. B. Rose, for appellant.
    
      W. C. Hutchison and Sheeks & Sneed, for appellee.
   Willie, Chief Justice.

A motion has been filed by the appellee to dismiss this appeal on the ground that the court below had no jurisdiction of the cause. It is a suit for the trial of right to property levied on under attachment and valued at $500; and it is claimed that, in such cases, the county and not the district courts have jurisdiction of the cause.

The provisions of our state constitution, as well as those of the Bevised Statutes, are somewhat in conflict upon this subject. By the eighth section of the fifth article of the constitution jurisdiction is given to the district courts of all suits for trial of right to property levied upon by virtue of any writ of execution, sequestration or attachment, when the property levied on shall be equal to or exceed in value $500. This clause considered by itself clearly gives • to the district court jurisdiction of just such a suit as the one under consideration. But it is said that this grant of jurisdiction is controlled by the sixteenth section of the same article, which provides as follows: “ That the county court shall have exclusive jurisdiction in all civil cases where the matter in controversy shall exceed in value §200 and not exceed §500, exclusive of interest.”

This provision is of a general character, and includes within its terms as well suits for the trial of right to property as any others of a civil nature. Standing alone it would give exclusive jurisdiction of suits like the present, where the value of the property levied on did not exceed §500, to the county courts. In such a state of conflict the rules of construction require that the general shall yield to the special provision; i. e., that the one which, in the present case, regulates the special subject of trials of the right of property shall prevail over that which regulates a larger class in which such suits, are embraced. Warren v. Shuman, 5 Tex., 442; Sedgw. on Con. & Stat. Law, 242; Vattel’s Rules of Construction, No. 8.

The power to hear and determine causes like the present, involving property of exactly §500 in value, having been given to the district courts in express words by the constitution, it could not have been the intention of the makers of that instrument to take away this power in the same article, and in a section following almost immediately upon the one which contained the grant. Their intern tion would rather seem, to have been to give the county courts exclusive jurisdiction of all suits where not more than §500 was involved, reserving to the district courts jurisdiction of such particular suits' of this general class as had already been conferred upon them in the previous section. This would in effect engraft an exception upon the general jurisdiction given to the county court in such matters, granting them exclusive jurisdiction over all suits where not less than §200 and not more than §500 should be in controversy, with the proviso that the district courts should have jurisdiction of suits for the trial of the right of property of the value of §500 or above that amount. This we deem to be the true construction to be placed upon these two conflicting clauses of our state constitution.

Passing to the Bevised Statutes we find that they provide that district courts shall have jurisdiction of such suits where the property levied on is of the value of §500, and that no such jurisdiction shall be exercised by the county courts. Arts. 1117, 1164.

Whether these enactments are to be viewed as laws passed in accordance with the construction we have placed upon the clauses above cited, or as an effort on the part of the legislature to diminish the jurisdiction of the county courts, and increase that of the district courts accordingly, they effectually, as far as was in their power so to do, grant the right to hear and determine such suits to the district and not to the county courts.

Not so with article 4831 of the same code, which provides that the officer levying the writ upon the property in dispute shall return it, together with the affidavit and claim bond, into the county court, if the value of the property seized is more than $200 and does not exceed $500. If this is to be regarded as an attempt to enact a law in accordance with the constitution, fixing the jurisdiction of the county court in such matters, then, according to the construction We ,have given that instrument, the law is in conflict with it and void. If regarded as an attempt under the twenty-second section of the fifth article to increase the jurisdiction of the county court beyond the limit placed upon it by organic law, it cannot be sustained because there is no provision making a corresponding change in the jurisdiction of the district courts.

We do not think that the twenty-second section of the fifth article of the constitution intended that the mere statutory grant to the county courts of a power beyond that which they were authorized under the constitution to exercise was to be construed as a lawful increase of the jurisdiction of such courts. If so, no matter what jurisdiction might be given by the legislature to these courts, the statute would be upheld. If they were authorized to try land suits, or indictments for felonies, or controversies involving property without limit as to value, we could not, under such construction of that section, say that the grant of power was not lawfully given, though directly contrary to the state constitution. It was doubtless intended that the jurisdiction should be prescribed for the county court, and provision should be made at the same time giving to the district court the power which had been withdrawn from the county courts, or depriving the district court of those which had been conferred upon the latter.

We are of opinion that the eighth section of the fifth article of the constitution conferred upon district courts jurisdiction of causes like the present, and that it was thereby excepted out of the jurisdiction granted to county courts in the sixteenth section of the same article. We are further of opinion that arts. 1117 and 1164 of the Eevised Statutes are in accordance with a true construction of these sections of the constitution, and that so much of art. 4831, Eevised Statutes, as attempts to confer such jurisdiction upon the county courts in cases where the property seized under attachment or other similar suits is of the value of $500, is inoperative and void. Hence we conclude that the district court of Hays county had jurisdiction of the present action, and the motion to dismiss must be overruled.

This conclusion, it may be added, is in full accord with that arrived at by the court of appeals in deciding upon a similar case in 1881.

It will be necessary to consider only one other question presented by the record, and that is as-to the right of the appellee to assert his claim to the property in this form of action.

The sale of the sheep to Blanks, under his mortgage, took place on the same day upon which the attachment was levied upon them. Which occurred first, the levy or the sale, is not shown by the record. As the sheep were taken from the possession of one of the defendants in attachment, and, the burden of proof being upon the claimant, he did not allege or prove that he purchased under his mortgage before the levy took place, we must conclude that the latter act was first in point of time.

The question then arises: Can a mortgagee out of possession assert his claim to property levied on under attachment in the manner prescribed by statute for trial of the right of property?” This question has been answered in the negative by frequent decisions of. this court rendered prior to the adoption of the Revised Statutes. Wootton v. Wheeler, 22 Tex., 338; Wright v. Henderson, 12 Tex., 43; Allen v. Russell, 19 Tex., 87. And even when the mortgagee is entitled to possession, it has been suggested that his proper remedy is a proceeding in equity to establish his right or interest in the property. Belt v. Raguet, 27 Tex., 471.

Art. 2296, Revised Statutes, gives the plaintiff in execution a right to have his writ levied upon the mortgaged property, and to liave the same sold subject to the lien of the mortgage. It also prescribes the terms upon which the purchaser at sheriff’s sale may obtain possession of the property, where it was in the hands of the lien holder at the time of the purchase, viz., by complying with the conditions of the pledge, assignment or mortgage. If the property is rightfully in the possession of the defendant in attachment or execution at, the time of the levy, and belongs to him subject to the lien of another party, the officer must take it into possession, and if he sells it under process the title passes to the purchaser subject to the lien, provided, of course, that this lien be of a character to be enforced against such purchasers. In the former case the lien-holder not being deprived of possession if the levy is properly made, there is no necessity for him to resort to a suit like the present to keep possession and establish his title to the property. Should the officer actually deprive him of possession, of course the present remedy would be an appropriate one, as was held in Osborn v. Koenigheim, 57 Tex., 91. But if the levy is properly made by giving him notice as prescribed by law, his possession remains, and the purchaser must be the actor in depriving him of it by redeeming the property from his lien.

But in case of possession by a defendant, the statute leaves the lien-holder to the same remedies as it was held he possessed before its passage. Being out of possession, and the property being sold subject to his lien, he must proceed to enforce that lien against the purchaser at sheriff’s sale, and cannot lay claim to it in a suit for a trial of the right to property.

In this case the sheep were taken under the levy from the possession of one of the defendants in attachment (which possession was rightful so far as the record shows), and before the mortgage had been foreclosed, and in our opinion the appellee had no power to enforce his rights as mortgagee in this form of action. This objection going to the foundation of the action, the judgment is reversed and the cause dismissed.

Dismissed.

[Opinion delivered January 15, 1884.]  