
    Bryan and another v. Bridge and another.
    There can be no doubt as to the power of the District Court to quash a sheriff’s return in proper eases; as where the levy and return are not in accordance with law, or where the facts stated in the return show that there was in fact no levy.
    It is essentia] to the validity of a levy on personal property that, the officer should make seizure or take actual possession of the goods. He must not only have a view of tlie property, but he must assert his title to it by such acts as would subject him to trespass were it not for the process. (Note 21.)
    The plaintiff in execution has no right, in any event, to point out property where the execution is issued to sell without appraisement. But the sheriff may, after the defendant has * failed to point out, adopt the plaintiff’s designation. (Note 22.)
    A valid levy must be disposed of before other property can be taken in satisfaction of the execution.
    "Where the sale is with appraisement, the defendant and the plaintiff have distinct rights of pointing out property; the defendant on the first two, and the plaintiff on the succeeding levies; and the levy must be based upon the act of the party who has the right to point out, or it may be annulled.
    Where execution is issued to sell without appraisement, and the defendant fails to point out, the sheriff cannot call upon the plaintiff to point out. but must use his own judgment.
    The sheriff has no right to require a bond of indemnity from the plaintiff in execution before selling real estate.
    Appeal from Galveston; Motion by the appellees, who were plaintiffs in the court below, to quash the sheriff’s return of an execution. The return was as follows:
    “Received July 3, 1847,and executed July 14,1847, by levying upon and advertising for sale for cash without appraisement, on the first Monday in August next, between the hours prescribed by law, by advertisements posted in three of the most public places in the county, to wit, at the court-house door, at the Tremont, and at the Verandah, all tlie right, title, and interest of the defendants or either of them in and to a certain negro man named Philip Lansing; at the instance of the counsel of William Bryan, and of the defendants in this execution, not having time to advertise for the August sale day, the advertisements were taken down and readvertised on the 11th (lay of August, 1847, for sale on the first Tuesday in September, as the law directs; which levy and advertisement was made at the suggestion of the defendants, without taking tlie said negro into custody, he not having been pointed out and delivered to mo except by name — intending on the day of sale to require them to produce the negro — and informing them, the defendants, at the time of indorsing the levy, that I should, require of them a bond of indemnity before I should proceed to sell said negro, being of the opinion that the aforesaid Bryan had no title to him; hut being advised I had no right to require indemnity of the .defendants, I intended before proceeding to seii to require the plaintiffs to execute a bond of indemnity to me; but previous to said clay of sale said negro was removed from my county, as I have reason to believe, to one James Lansing, who is, I am informed, the only legal owner of the said slave; and subsequently, viz, on the 9th day of October, 1847, I called on the defendants for a further levy, but they having neglected and refused to point out, and not knowing of any personal property belonging to the defendants, the nlaintiffs’ counsel directed me on the 12th day of October, 1847, to levy upon all the right, title, and interest of William Bryan in and to the property hereinafter described-; and upon the 12th day of October,-1847, 1 proceeded to levy tipon and advertise for sale on the first Tuesday of November, 18-17, as the law directs, for cash, without appraisement, all tiie right, title, and interest of William Bryan in and to that certain tract or parcel of land situated on Galveston island, being a portion of a tract of laud granted by the Republic of Texas to Levi Jones and Edward Hall, and more pari icnlarly described byt.be commissioner appointed to divide the said land between the, parlies aforesaid as section number three; but on Tuesday one Ebenezer Allen notified me that be was the owner of the section of land above described, ami the records of the county not showing any tille to have existed In William Bryan at any time, I called on Jonas Butler, plaintiffs’ counsel, for a bond of indemnity, informing him that I would abandon the levy and not sell without such bond, which be having refused to give, the parties in Interest were notified through their counsel that the levy was abandoned, and that there would be no sale, and execution returned accordingly, November 3, 1847.
    “P. Bbyan, Sheriff G. £7.”
    The plaintiff’s motion to quash was on the grounds “that tiie return is irregular and insufficient, and that so much of said return as relates to a negro man named Philip Lansing is superfluous and no legal return ; and the whole of the said return is illegal, invalid, and insufficient, and only tends to embarrass the plaintiff’s execution, and for such amendments and relief as tiie nature of their case may require.”
    The motion was sustained, and the defendants in the execution appealed.
    
      E. Allen and L. Sherwood, for appellants.
    I. It is contended that a District Court has no right to quash tiie return of a sheriff in any ease. Where it appeal’s he lias levied on property, he must expose the property for sale unless replevied.
    IL The levying upon property sufficient to satisfy the execution is a satisfaction of it, notwithstanding the sheriff may lose the property by his negligence.
    A sheriff would, on motion, be allowed to amend bis return so as to make it correspond-with the facts; hut the court cannot, on motion, change his return from a levy on property to a return of nvlla bona. The most the court could-do when property liad been levied on and run off would be to award a vendi-tioni exponas.
    
    The defendant Bryan had a right to contend that property of his sufficient to satisfy tiie execution had been levied upon, and it is not seen on what ground or principle the court below would be permitted to strike out the evidence of ;t levy having been made, and more especially on the motion of the plaintiffs in the execution, when the defendants did not ask it.
    The question whether property bad been levied on sufficient to satisfy the execution was a question of fact; the right of the parties depended on those facts. The return of the sheriff as made was the evidence for any party affected by the return. No one had any right to ask an order of tiie court adding to or diminishing from the facts stated in tiie return, if true.
    
      J. B. Jones, for appellees.
    I. But two questions are presented by the record. 1st. Is it competent for the court to entertain a motion to quash a sheriff's return ? And if it is, then.' 2d. Was there error in the judgment of the court quashing the return in this case?
    That it is proper practice to entertain the motion there can be no doubt. It is, in fact, the only way of correcting.the irregularities of the sheriff. (Wells v. Kcteliem & Watts, i Bibb IL, 4Ó8; Smith r. Carr et al., Hardin R., 307; Scott & Rose v. Allen, I Tex. R., 510.)
    Prom the nature of things and the constitution of the court, it must have power to correct irregularities and abuses in the execution of its process.
    
      ■ H. The slightest inspection of the return will show that it ought to have been quashed'. It was tiie light of the plaintiff to have the execution freed from the incumbrance of such a return.
    The defendant alone had'the right to point out the property. The sheriff had no right to take the designation of the plaintiffs, even if they made such designation.
   Hemphill, Oh. J.

The first question made is whether a District Court has the power to quash a return of the sheriff.

Of this there can be no doubt in proper cases, and we have so decided in effect in tiie case of Scott & Rose v. Allen, (1 Tex. R., 508.) For instance, where the levy and returns made are not in accordance with law, they may be quashed, or where facts are stated which show there was no levy in fact, the return may be vacated and set aside.

The next question is whether there was error in the judgment of the court quashing the return in this case.

It is very clear there was no error in quashing all that part of the return in which tiie acts and sayings of the sheriff and others relative to the negro man Philip were set forth. He had in fact made no levy upon the negro. He liad not at any time had possession of the property. He received only the name, not the body, of the slave from tiie defendants, and upon that lie indorsed what he denominates his-levy.

Now, it is essential to the validity of a levy of personal property that the officer should make seizure or take actual possession of the goods. 1-Ie must not only have a view of tiie property, but he must assert Ills title to them by such act as would subject him to trespass were it not for the process. (10 S. & M. R.. 35 ; 14 Wend. R., 123.)

The whole of tiie statement in relation to tiie negro is superfluous. It is not the return of any act which was in conformity with the exigent of tiie writ, and should have been stricken out and quashed as impertinent surplusage.

But the question in relation to the vacating and annulling the latter portion of (.lie return is of a more grave character.

This shows tiiat laud liad been levied upon as tiie property of one of the defendants, and after they had refused to point out any property for levy, the sheriff also certifying that lie did not know of any personal property which belonged to the defendants. It is contended that this levy was illegal because made on a designation of property by tiie plaintiffs’ counsel, who had no right to make such designation.

Tiie statute of 1842, in relation to executions, in its 4th section (Digest, art. 1327) declares that tiie defendant,, his agent or attorney, in all cases shall have tiie right to designate tiie property to”bo levied on, provided said property shall be in the county where judgment shall have been rendered or to which execution may be issued; and if the defendant, his agent or attorney, shall fail or refuse to designate the same, it being his property, then the levy shall be made in tiie following manner: first, on personal or movable property; then on uncultivated lauds; then on slaves; and, lastly, on the improved lands or homestead of the defendant.

It appears from the statute that the defendant has the right in all cases to designate properly for levy; but should he fail or refuse to exercise this privilege, the sheriff may proceed to levy in the order prescribed by the law. The plaintiff has no right, in any case where the property is to be sold without appraisement, to insist upon making a designation. The sheriff is not required to call on him for that purpose. But though the sheriff be not required to take his designation, yet he may adopt it as his own ; and if ho do so, and tiie levy be in conformity with law, it must be disposed of before other property can be taken in satisfaction of the execution.

The 19th section of the act of 1842 offers to the defendant, when the property is to be sold under appraisement, the privilege of twice pointing out such as lie may choose to surrender in satisfaction of the debt, but on the third levy the plaintiff has the right of designation. This the sheriff would he compelled to respect and to carry into execution. But any designation by the plaintiff in the first and second levies would be illegal, and the levies would be contrary to law, and might be quashed. Where the sale is with appraisement the defendant and the plaintiff have distinct rights of pointing out property for sale: the defendant on the first two and the plaintiff on the succeeding levies. Neither of them can interfere with the other; and the levy of the sheriff mint be based on the act of the party who lias the right to poiut out property, or it may be annulled. But in sales without appraisement the statute in no ease confers the right of designation on the plaintiff. It gives him no privilege; nor does it impose upon the sheriff any obligation to respect such designation; nor would lie be liable if he disregarded it. lie must exercise his own judgment. The act of the plaintiff would be nugatory; it would not affect the validity of the levy. If personal property wore taken, the sheriff, if lie doubted I he litie of the defendant ip execution, might demand a bond of the indemnify from the plaintiff before sale; but I. am not aware of any principle or rule which requires such security where the realty has been the subject of levy, nor which would, on denial of such security, justify the sheriff in abandoning the levy and refusing to sell the property. He has made the levy his own, and he might as well have stated it to be at the instance of any third person as of the plaintiff. The act of neither can be assumed as the foundation of the sheriff’s procedure, nor does it either justify or nullify his action. It has no effect upon it, at least where the only question is whether the levy is valid or not.

Note 21.—Portia v. Parker, 8 T., 23; Converse & Co. v. McKee, 14 T., 30; Brown v. Lane, 19 T., 203.

Note 22.—Sydnor v. Roberts, 13 T., 598; Kendrick v. Rice, 16 T., 251.

We are of opinion that the levy upon the land was valid, and that there was errqr in quashing that portion which relates exclusively to the action of the sheriff in levying upon the land.

The return may possibly be amended, and it will be remanded that such action may be taken as may be in conformity wilh this opinion and with the law, and that the parties may take such further action as may he deemed advisable. It is therefore ordered thád the judgment he reversed and the cause remanded, with directions to enter such judgment as may be in conformity with this opinion and the law.

Judgment reversed.  