
    Givens v. Taylor, Hart & Co.
    The affidavit required by article 50, (Hart. Dig.,) to put tho answer of the garnishee in issue, must be made by the plaintiff, not by his agent or attorney,
    It has been the uniform rule of decision of this court, incases of attachment especially,never to extend the provisions of the statute by a liberal intendment of what might* have been the of the
    Where a garnishee answered that, by a deed of trust executed by the defendant to secure the pajmentof a debt due by the said defendant to one Gilmer, certain property had been conveyed to him as trustee; that the deed of trust had not been recorded when the attachment was levied, but that it was known to the plaintiffs’ agent before the levy of vtho attachment; and tho plaintiffs by their counsel denied that they had any notice of the deed of trust before the levy of the attachment, and the question of notice was found for the garnishee: Held, That the only judgment that could be sustained on their finding would be the discharge of the garnishee.
    Notice of a deed of trust on the property in the hands of the garnishee to the plaintiffs’ attorney who made the affidavit to procure the attachment was notice to the plaintiff.
    Appeal from Cherokee. The suit out of which this case arose was instituted by the appellees against one Lewis, and, on an affidavit being made that Lewis so secreted himself that the ordinary process could not be served upon him, an attachment was issued. This was after the ordinary process requiring the defendant Lewis to appear and answer' the plaintiffs’ petition had been returned “ not found.” Summons in the ordinary way of garnishment was sued out against Givens, and publication was made requiring Lewis to appear and answer the plaintiffs’ petition, after which judgment final was rendered against Lewis before there, had been any definite action of the court against the garnishee. Givens to the summons answered that, by a deed of trust executed by Lewis to secure the payment of a debt duo by the said Lewis to one Gilmer, certain property bad been conveyed to him as trustee, and he set out the deed of (rust as a part of bis answer; that a part of the property conveyed by the deed of trust bad never been delivered to him, to wit, a negro girl, Viney, and a horse; that the deed of trust had not been recorded when the attachment was levied, but that it was known to tho plaintiffs’ agent before the levy of the attachment. The plaintiffs by their counsel denied that they had any notice of the deed of trust before the levy of the attachment, which denial was supported by the affidavit of Able, the agent of the plaintiffs. The garnishee/Givens excepted to the traverse of .his answer so made by Abie. The exception was overruled. It appeared from the record that a jury was sworn to try the issue so formed by the affidavit of Able. The jury returned a verdict that Chandler, the attorney of the plaintiffs Taylor, Hart & Co., had notice of the deed of trust before the levy of the attachment. The record showed that. Chandler, as the. attorney of the plaintiffs, hart made an affidavit on which he. prayed for Ihe attachment t hat. was hsuert. The court on the verdict so found gave judgment against ihe garnishee, from which an appeal was 1 aken.
    
      
      Donley %• Davis, for appellant.
    I. The affidavit of Able, controverting the answer of the garnishee, was not in conformity with law, and should have been stricken out. This court has decided that attachments are oppressive upon debtors, and as against plaintiffs have, been subject to rigid rules of construction. (Wooster v. McGee, 1 Tex. It., 19; Chevailier v. II. II. Williams & Co., 2 Tex. R., 239-2415.)
    The, case of a garnishee presents no claim for the exception to the strict rules of construction as against plaintiffs in attachment. If a successful defendant in attachment, may be ruined (Chevailier v. II. II. Williams & Co.) a garni-hee may bo greatly injured if a plaintiff is permitted to depart from the sfalute. The garnishment casts a cloud over the title of the property, clogs the use, and embarrasses him in disposing' of it. In this case the cestiii que trust is delayed from collecting his claim. Lewis is, contrary to his act and wish, held a debtor to Gilmer, and appellant is involved in litigation, perhaps in a protracted and expensive, law suit.
    II. The matter in issue does not. fully appear, but by reference to the pleadings it is fairly inferable that the issue was whether the plaintiffs below had notice of the deed of trust to the appellant at the time of or before the levy of attachment. The jury find that Chandler, the attorney of appellee.®, had actual notice of the. deed of trust to the appellant before the levy of plaintiff’s attachment. Notice to attorney, counsel, or agent is notice to the principal. (Sugd. on Vend., 2d part, 278: 4 Kent, 172; 2"Stark. Ev., 728, note a; 1 Story Éq., secs. 200, 407, 408; Jackson v. Sharp, 9 Johns, R., 160-1G9; Stern v. Mill, 13 Ves. R., 120; sec. 21, Act of Limitation, Law of Texas, 5th February, 1840.) Notice, to a solicitor is notice to a client. (Gostleug’s case, 2 Bar. & liar. Dig-., Tit. Notice, p. 320, sec. 3.)
    
      Shanks %• Bonner, for appellees.
    I. If the denial of Able was improperly allowed it is now too late to except. The objection should have been made at. the time and not deferred to tills late day. If there was an irregularity the appellant, by bis laches, has waived 1ns rights. For aught this court knows there were sufficient grounds for admitting the denial of Able, and it being admitted without objection, this court cannot otherwise than presume it to have been legally done.
    II. That notice' is, for most purposes, equivalent to registration will not. be .denied; but by the 13th section of nn act concerning conveyances, approved April 5, 1S-10, (ILuT.ibig., art. 2775,) every conveyance, deed of trust, &c., shall take effect and be valid as to “all creditors” from the time when such instrument shall bo acknowledged, proved, or certified, and delivered to the clerk to be recorded, “and from that time only.” The record shows that the attachment was levied before the deed of trust from Lends to Gilmer was acknowledged, or proved, or certified, and delivered to the clerk to be recorded, and therefore, by the statute, the deed of trust was void as to Taylor, Hart & Co., the record showing them to have been not only creditors, but prior creditors. The 21st section of the act of limitations, (Ilart. Dig., art. 2777,) relied on by the appellant, does not in the least affect the rights of the appellees. That statute says that the “acknowledgment or probate certificate and registration, or cither of (hem, as between the parties and their legal representatives and all subsequent purchasers and creditors,” (meaning subsequent creditors,) “with actual notice or reasonable information of the grant, deed, or instrument, shall not be deemed requisite in order to its full effect, validity, and priority, according to its intrinsic nature.” The natural, reasonable, and grammatical construction of this clause, and the evident intention and object of the law-makers, deduced from principles of common sense, equity, and justice, make the word “subsequent” apply as well to creditors as to purchasers, both being in immediate connection, and joined by the copulative conjunction “ and.” That this is the obvious and correct instruction is placed beyond doubt; when we compare the language to that used in the 13th section of the act of conveyances above quoted. That makes the instrument valid as to “all” creditors from the time when it shall be acknowledged, proved, or certified and delivered to the clerk for record, “and from that time only.” The 21st section of the act of limitations makes notice or reasonable information sufficient in place of actual registration or filing for record as to “subsequent ” creditors, (he expression “all creditors” being- used in the one and the expression “subsequent creditors” being used in the other. This statute, then, making actual notice or reasonable information sufficient in place of actual registration or filing for record as to subsequent purchasers and subsequent creditors does of itself, by strong implication, make actual registration or filing-for record indispensable in case of prior creditors, in which relation the appel-lees stand. The rule is “ that affirmatives in statutes which introduce newlaws do imply a negative of all that is not in the purview.” (1 Yerg. R., 185.) This 21st section of the act of limitations, it is believed, does not repeal the 13th section of tiie act concerning conveyances, which makes deeds of trust valid against “all ” creditors from the time they shall be acknowledged, proved, or certified ajul delivered for record, and from that time only. If the one affects the other at all, it is only so far as subsequent creditors are concerned. (Hart. Dig., p. 830; 2 Wharf. R., 240.) The whole current of law, and the decisions of courts of the highest authority, draw a marked distinction between prior creditors and subsequent creditors favorable to the former. The record showing us to be prior creditors, we arc entitled to all the rights as such, and our equities should not, on principles of reason and common'justice, independent of statutory provisions, be disturbed by a subsequent voluntary assignment which has upon its very face evidences of fraud and undue partiality.
   Lipscomb, J.

There we're many exceptions taken to the ruling of the court on points presented in the progress of the proceedings. We will only notice and discuss such as we believe to be important. The issue tried by the jury was oh a denial of the return of the garnishee, which denial it is contended was insufficient in law to authorize an issue to bo made up by the court for the jury. It will be seen by article 50 of Hartley’s Digest that “tiie plaintiff wishing to controvert tiie garnishee's answer may do so by making oath that lie believes the same to be incorrect.” If the provision of tiie statute just cited is to receive the plain and obvious interpretation of the language emploj'ed, no person bnt the plaintiff could make the oath required. Now it expressly provided as to the affidavit for taking out an attachment and the bond required to be given that it shall he done by the plaintiff, his agent, or attorney. (Art. 25, Digest.) Why this provision was not extended to tiie oath required to put the garnishee’s answer in controversy is a question to which we liave no right to respond. Had the language been equivocal as to by whom tiie oath should be made there would have been plausible ground for referring it to the previous article to ascertain who ivas authorized to make it. But no such uncertainty is discovered; and it has been the uniform rule of decision of this court, in cases of attachment especially, never to extend the provisions'of the statute by a liberal intendment of what might liave been the meaning of the Legislature. We think, therefore, the court below erred in overruling the garnishee’s exception to the manner in which his answer was controverted.

The objection to the judgment rendered by the court on the verdict of the jury must be sustained. The same article in the digest, directing- the manner in which tiie answer of the’garnishee shall be controverted, directs that when it has been so controverted an issue shall be made under the direction of the court to be tried b.y a jury. The only issue that seems to liave been presented to the jury was as to the fact of notice to the plaintiffs of the existence of the deed of trust before the levy of the attachment, and this issue must have been formed on the hypothesis that the court believed that it was the only important one, and that it would be decisive of the case. If so, and if this w?.s the only part of the answer denied, tiie execution of the deed for a good and valid consideration fairly and bona fide made was admitted; 'and if it was not a valid defense, it was because there was no notice, either actual or edn-struetive, to the plaintiffs of its existence before their lien acquired by the attachment was created. Such, then, being the issue put to the jury, their verdict did not authorize a judgment of condemnation against the garnishee, because it was found in his favor. And the only judgment that could be sustained on their finding would be the discharge of the garnishee. If the deed was for a valuable consideration and not liable to be impeached, the question of notice was the only one that could be raised, as it will not admit of a doubt that until a lien had attached it was perfectly competent for the debtor to prefer one creditor to another. That the plaintiffs acquired no lien before the levy of their attachment is a proposition that will not be denied. The deed not having been registered it was necessary to prevent the lien of the attaching creditor that actual notice should be brought home to him. As notice to the attorney and agent, who had as such made the affidavit for obtaining the attachment, was notice to his principa], we decline discussing the question whether a judicial attachment creates a lien, because hi this case it has not been raised. But it is certain that no lien could be acquired until the levy, even if a judicial attachment is to be put on the same footing as an original one.

The judgment must be reversed and the cause remanded.

Judgment reversed.  