Taylor v. Benningfield

LEVY, J. (after stating the facts as above.) The court’s conclusion of law is assailed “that all of said cotton was legally in the possession of the said Degan at the time of the levy” of the attachment writ. Under the facts the question is, Was the levy of the attachment writ made in accordance with the provisions of the statutes in such cases made and provided? The mere fact that the officer did not know that the claimant owned an undivided half, interest in the cotton, nor that he had and held the receipts or certificates, does not render the levy effective. For if the appellant was entitled to the possession *939 at the time of the levy the officer had no right to interfere with it to the extent of forcibly taking actual possession of the entire property. And the attaching creditor of L. E. Degan, the appellee, would not legally he an innocent purchaser for value, however the title turned out to be. If the statutory course is not followed and the officer levies the writ by taking possession of the property, there results an illegal ouster of rightful possession which can be regained in the statutory proceeding of trial of right of property. The statutory course under the facts of this case only admitted of a constructive levy. The statute provides that where the debtor “has an interest in personal property, but is not entitled to the possession thereof” the officer cannot levy by taking possession from “the person who is entitled to the possession.” Article 3740, R. S. The transfer and delivery of the cotton tickets to appellant by Degan, a half owner of the cotton, “entitled” the appellant as against Degan “to the possession” of the cotton. As has been decided, “the statute does not in express terms require that there shall be an immediate actual delivery of the property,” but “whatever act is in law an immediate delivery” meets the requirement and must be held sufficient. Osborn v. Koenigheim, 57 Tex. 91. The instant ease is not different in principle from Briggs v. Briggs (Tex. Civ. App.) 247 S. W. 312. The judgment must be reversed, and a judgment will be here rendered in favor of the appellant and with all cost of the court below and of appeal. The judgment here rendered shall in no wise affect the appel-lee’s right to have a constructive levy hereafter made on the cotton, nor to garnishee the money received for the sale of Degan’s half interest.