White v. S. Jacobs, Bernheim & Co.

Willie, Chief Justice. The levy in this case was made under Arts. 2293, 2295 of the Revised Statutes, which provide a way for levying upon the interest of a partner, and upon stock running at large. Such a levy does not disturb the possession of the owner of the stock, and for that reason it is contended in this case that a claim bond and affidavit could not be interposed for the trial of the right of property; our statute does not in terms limit the right to file such claim to a party whose possession is interfered with by the levy of the process. On the contrary, it recognizes the right of a party out of possession to [464] make the claim by providing as to the burden of proof in cases where the property is taken from the defendant in execution. The object of the law is to give to the claimant of personal property seized under process of law, a summary method of asserting his title or right of possession, without a resort to an ordinary suit for a recovery of the property or its value. His claim, however, must be one of title or of possession. Either of these would authorize him to recover as against a naked trespasser, and entitle him to make the affidavit of ownership necessary to the claim. It is not necessary that both ownership and possession should unite in the claimant. A person having no other right to the property except a lien upon it, cannot have his right tested in such a proceeding, as has been frequently decided. Wooten v. Wheeler, 22 Tex., 339; Seeligson v. Adoue & Lobit, 54 Tex., 593; Wright v. Henderson, 12 Tex., 43. But, if as such lienholder he is in possession, he can make the claim if his possession is disturbed by the levy. His lien does not authorize him to claim as owner, but it gives him a right to the possession he holds, and this right enables him to make the claim. Osborn v. Koenigheim, 57 Tex., 91. But ownership being all that is required, there is no necessity that it should be accompanied by possession. It will support an action for trespass, and is sufficient to serve as a basis for a claim under the statutes. Either the question of title in the claimant, or that of his right to hold possession of the property as against the defendant in the process, is what is to be tried. If either is proved to exist in the claimant, he must succeed in the suit, and what enables him to maintain his claim will certainly authorize him to assert it. The levy was upon the partnership interest of A. E. McCarty, in the stock of cattle. The affidavit and bond were filed by White, who owned an interest in the same cattle, and by two other parties claiming the remaining interests. We see no objection to this. The interest of the defendant in execution, if any, was one-half of what "emained of the partnership property after the partnership debts were paid. White was interested in seeing that no more was adjudged subject to the execution than this interest of his alleged co-partner. A sale of any amount beyond that would interfere with the possession that White held as partner, and his lien for the benefit of firm creditors. The stock, according to the affidavit, was the joint property of himself and two other parties, who joined with him in the affidavit. If the levy was sustained, it belonged to White and one, a person whom he did not recognize as a partner, and the partnership was dissolved by the levy. He certainly had an interest in establishing the true [465] ownership of the cattle; in showing the true state of the partnership; in preventing the plaintiff from forcing upon him a partner whom he did not recognize, and therefore dissolving the partnership, and in keeping off the injuries which might result from the dissolution. His presence in the case did not interfere with the contest between the plaintiff and the claimants of the interest in the cattle attributed to McCarty, and was certainly useful in protecting his own rights as partner in the ownership of the stock, and the interest of firm creditors, who, in such a proceeding, could assert their rights through him alone. If the claim cannot be made jointly by the owners of the firm property, there is no way of asserting and fully protecting partnership assets in a proceeding like this, when levied on for the separate debt of one of the partners. We think the court erred in dismissing the claim, and for this error the judgment is reversed and the cause remanded. Reversed and Remanded. [Opinion delivered June 22, 1886.] [Justice Robertson did not sit in this cause.]