
    Wright v. Henderson.
    It is not necessary that the affidavit of a claim to property, under the statute which provides for the trial of the right of property levied upon by execution, &c., (Hart. Dig., p. 850,) should slate the authority by which the property has been seized, nor the facts which constitute the claimant’s right. It is sufficient for the affidavit to state that the claimant claims the property “as trustee,” and that his claim is made in good faith.
    It is the duty of the court, on a claim of property, to direct an issue to be formed, so that it may appear from the pleadings by what authority the plaintiff in the writ had caused the property to be levied on, and by what right the claimant resisted the execution of the writ.
    Appeal from Red River. The appellant, as the claimant of certain property levied on as the property of another, at the instance of the appellee, made his affidavit and bond for the trial of the right of property, which were returned to the office of the clerk of the District Court, and the case was by him docketed as directed by article 2816 of the Digest. At the first term of the court thereafter the appellee moved the court to quash the affidavit and bond and dismiss the ease from the docket; which motion the court sustained, and the claimant appealed.
    The principal ground relied on in favor of the action of the court was that the affidavit stated that the affiant claimed the property as trustee, without stating the character or extent of his interest.
    
      Morrill 8f Diclcson, for appellant.
    It will be at once perceived that the only oath required is that “ such claim is made in good faith.” The grounds of his claim, or his evidence of title, or any circumstances going to show the cause of action, such as are necessary in a petition; are not necessary, because “the “issue is tobe made up under the direction of the court.”
    
      Young & Morgan, for appellee.
    The court decided correctly in quashing the bond and affidavit. The affidavit is not in compliance with the statute. It does not state that the property was levied upon by a writ oí attachment, sequestration, or execution, or by any other writ. The statute which authorizes this affidavit was made for the benefit of the claimant, to enable him to establish his right to property, when levied upon by writ of execution, attachment, or sequestration, without the necessity of commencing suit, as in ordinary cases. How, if the claimant expects to avail himself of the advantages resulting- from the provisions of this statute, he must pursue it strictly. The statute requires that when property is levied upon by writ of execution, attachment, or sequestration, and such property be claimed (unqualifiedly) by a person not a party to the writ, the claimant shall make oath that his claim is made in good faith, which oath shall be made before a justice of the peace of the county where the oath is made. How, the affidavit does not show that any-writ was derived, or that he claimed tlui property as his, but does show that he claims it as trustee, and does not even aver his interest as trustee. It may not excuse live cents.
   Wheeler, J.

It is a sufficient answer to the objection to the affidavit that the facts in which the claimant’s right consists are matters to bo pleaded, and are not required to be stated in the affidavit prescribed by the statute. The statute provides, that at the first term of the court after the case shall have been docketed, if the parties appear, the court shall direct an issue to be made up between them, and tried by a jury as in other cases. (Hart. Dig-., art. 2816.) Here, both parties having appeared, it was the duty of the court to have directed an issue, in the foundation of which the parties would have been required to set forth upon the record, by pleading, the facts in which their rights respectively consisted. It would then have appeared by what authority tiie plaintiff iu the writ had caused the property to be levied on, and by what right the claimant resisted the execution of the writ. The facts of the case would have been before the court for adjudication; and the controversy might have been determined upon the merits. But instead of this the court was asked to determine, in the absence of pleading and proof ; and it is now insisted that the claimant could have no right to resist the sale of the property, because ho claimed as trustee, it being assumed that a trustee can have no rights which will prevent the property from liability to he sold subject to the interest or rights of the trustee. That, manifestly, will depend upon the nature of the trust and the rights of the trustee in the particular case, of which the action of the court wás not such as to afford us the requisite information in the present case. It is scarcely necessary to say that the court will not undertake to adjudicate the merits of the ease until the facts shall have been brought before us by the record.

There were other objections taken to the affidavit and bond which are not deemed to require notice.

We are of opinion that the court erred in dismissing the case without having directed an issue to he made up as prescribed by the'statute. If the claimant had failed to appear, or appearing, liad Refused to join issue under the direction of the court, even that would not have authorized the dismissal of the case, hut it must have been disposed of according to the direction of the statute, which plainly marks out the course of proceeding.

The judgment is reversed and the cause remanded for further proceedings.

Reversed and remanded.  