Earle v. Thomas

Wheeler, J. The appellant has no cause to complain of the ruling of the Court, upon the question of the right of the claimant, to impeach the validity of the execution sent to San Augustine County. The law under which the execution issued, does not provide in what manner the facts shall be made to appear, which will authorize the sending of the execution out of the county; nor does it declare that the execution shall be void, if such facts did not exist. The question of the validity of executions, thus sent to another county, has been repeatedly before the Supreme Court of Kentucky. And in the case of Cox v. Nelson, (1 Monroe, 94,) where the previous cases are cited, the Court held, that, there being cases, where an execution may go out of the county, an execution from another county, though irregularly issued, is not void, but voidable only, and it is the duty of the officer who receives, to execute it. r (And see Roberts v. Sydnor, 13 Tex. R. 598.) The execution not being void, but at most, irregular, could only be avoided at the instance of a party to it. The claimant of the property levied on, therefore, could not inquire into the regularity of the execution. The objection to the transcript from Sabine county, that it did not appear that the executions copied into it, had the seal of the Court attached, we do not think well taken. There was no law at that time which required that the execution should be authenticated by the seal of the Court. These executions, however, purport to have been so authenticated; and there is little doubt that, in fact, they were; and that the Clerk in copying, omitted to copy the seal. But though issued without a seal, they were not, on that account, void. The only remaining question in the case, which it is material to consider, arises upon the rulings of the Court, in giving and [592] refusing instructions. And in these we think there is error. The instructions given, in respect to the effect of the continued possession of the defendant in execution, were well calculated to mislead the jury, in two respects ; in the first place, in leading them to suppose that such possession was not merely a badge of fraud, a circumstance, from which, unless satisfactorily explained, the law would presume fraud, but one which did not admit of explanation, but afforded, in itself, a conclusive presumption of fraud, or fraud per se ; and in the next place, by charging upon an hypothesis which had no foundation in evidence, leading the jury to suppose, that the continued possession of the defendant in execution, might have had the effect of divesting the plaintiff's title, though originally good and valid, not being affected by fraud ; or, at least, render the property subject to be taken in execution in satisfaction of the plaintiff’s judgment, when it appeared indisputably in evidence, that three years had not elapsed, from the inception of the plaintiff’s title, to the time of the levy of the execution ; and there was no evidence that the plaintiff’s debt was contracted after the possession under the supposed loan commenced, or that it was, or could have been contracted on the faith of the continued ownership of the party in possession. That the instructions, in question, in the form in which they were expressed, and especially that in reference to the effect of possession, upon the question of fraud, were well calculated to mislead, we cannot doubt. Had the instruction asked by the claimant been given, it might have had the effect to counteract the erroneous impressions which the jury would be likely to' receive from the charge of the Court. At least, in that event, the party would not have had cause to complain. But it was refused; and the charge of the Court remained unqualified. It is not perceived that, as applied to the facts of this case, (and so it is, of course, to be understood,) the charge asked was not in conformity to law. It, at least, was sufficient to indicate dissatisfaction with the charge, in those respects indicated, and to call for its reconsideration by the Court, before [593] the jury retired. Not having had that effect, we think the refusal of it may well be assigned as error. It is objected on behalf of the appellee, that the assignment of error is, in this particular, too general. It, however, is sufficiently specific, in respect to the charge refused; and that, we think, sufficiently indicates in what respect the charge given was objected to as erroneous. It would have been better, if the assignment in reference to the charge given had been more specific. But the charge is so framed as that it would not, perhaps, very readily occur to counsel, how else to make the assignment, with the brevity and directness desirable in an assignment of errors; for the charge is not objectionable, so much on account of the abstract legal propositions announced, as on account of the form in which they are announced, considered in referenbe to the evidence in the case, and the impressions they were calculated to make upon the minds of the jury. What shall be a sufficiently special assignment of error, is not susceptible of precise definition. It should be such as to draw the mind to the apprehension of the particular error intended to be relied on. But what shall be sufficient for this purpose, still remains to be determined upon the particular circumstances of each case. In the present case, the error complained of is suggested by the instruction refused ; and it is still more distinctly brought to view, by considering that instruction in reference to the repetition of the most objectionable part of the charge, in the form of a distinct and independent proposition, disconnected from, and immediately following the general charge of the Court. It thus receives a prominence, which could scarcely escape attention. And where the errors complained of are, apparently, of so controlling a character, they cannot, we think, be overlooked or disregarded, though the assignment of error is not as specific as it might have been. It has sometimes been said, that a party wishing to take advantage of any error in the charge of the Court, must except. But by this it is not intended that he shall take a bill of exceptions ; for he may attain the same purpose, by asking such in [594] structions as will place the law of the case in a proper light before the jury; which, if refused will have the effect of a hill of exceptions. (Hart. Dig. Art. 754.) That was attempted in this case ; and though imperfectly done, we think it sufficient to entitle him to have the errors complained of revised. The rulings of the Court assigned as error were made aground of the motion for a new trial; which ought, we think, to have on that ground, been granted ; and its refusal is assigned as error. The present is not unlike the case of Lee v. Hamilton, (12 Tex. R.) where the judgment was reversed upon similar grounds. And we think the general practice of the Court requires a like action in this case. The judgment is reversed and the cause remanded for a new trial. Reversed and remanded.