Wise v. Old

Bonner, Associate Justice. The judgment under revision was rendered by the district court of Marion county, on a proceeding instituted for the trial of the right of property to six bales of cotton claimed by the plaintiff in error, C. J. Wise. It appears from the [515] record that the defendant in error, A. V. D. Old, had previously, in Morals county, instituted proceedings by distress warrant against his tenant, Samuel G. Leake, and had caused to be levied upon certain property in that county. The property claimed by Wise had been levied upon by the sheriff of Marion county by virtue of a writ, which had also issued under the proceedings by distress warrant in Morris county. This cotton had been carried into Marion county by the tenant Leake and sold to Wise for a valuable consideration without notice of the landlord’s lien on it. Wise claimed under this sale, Old claimed the landlord’s lien. In the proceedings by distress in Morris county, a personal judgment was rendered in favor of Old, the landlord, against Leake, the tenant, for $337.50, and foreclosing the lien on the property levied on in Morris county, but which was not sufficient to satisfy the judgment. Ho foreclosure was had in the district court of Morris county as to the lien on the property in controversy, and which had been levied upon by the sheriff of Marion county, and no mention whatever made of it in that judgment. On the trial of the right of property, judgment was rendered in favor of the landlord, Old, and against the purchaser, Wise, for $240, the value of the cotton, with interest, and ten per cent, damages under the statute; from which this writ of error is sued out. The first proposition under the first assignment, and which is authorized by it, is that the lien of Old was waived and abandoned by the judgment taken in the district court of Morris county, the same not having been foreclosed. We think the proposition correct under the authorities, and that it is decisive of this case, and that the judgment should be reversed. Toland v. Swearingen, 39 Tex., 447; Gentry v. Lockett, 37 Tex., 503; Cook v. Love, 33 Tex., 487. The judgment is reversed, and judgment will be rendered in this court in favor of Wise, plaintiff in error. Revebsed and eendebed. [Opinion delivered October 24, 1882.]