NOUNG, Justice.
This suit was filed by appellant against Sheriff Bill Decker of Dallas County and surety on his official bond under Art. 3825, Vernon’s Ann.Civ.St, seeking to fix liability for failure and refusal to levy on certain merchandise and fixtures described as the property of judgment debtor, Melvin May. Before making return of nulla bona on the execution in question, the Sheriff made request on the judgment creditor (appellant) to post an indemnity bond, which was refused. The appeal is by Fant Milh ing Company from adverse'judgment rendered on trial to the court.
The material facts and issues involved are sufficiently ^reflected in findings arid conclusions ' duly filed by the trial court, viz.: “(1) That on the 12th day of January, 1950 plaintiff, Fant Milling Company, a corporation, recovered judgment against Melvin May, dba Dallas Feed Company, said judgment providing, among other things, as follows: ‘It is therefore ordered, adjudged and decreed that the plaintiff, Fant Milling' Company, do have and recover of the defendant, Melvin May, doing -business as Dallas Feed Company, its damages in the present sum of one thousand' two hundred and thirty-eight and 36/ sand two hundred and thirty-eight and 36/100 ($1,238.36) dollars" plus interest thereon at the rate of six (6%) per cent per annum from the 3rd day "of 'April 1949 plus [447]*447its costs in this cause expended, and that defendant, Melvin May, doing business as Dallas Feed Company, take nothing by his cross action herein filed, and that as to such cross action Fant Milling Company go hence with its costs without day; for all of which let execution issue.’ And that said judgment is final, no appeal therefrom having been perfected during the time allowed by law. (2) That on February 2, 1950 plaintiff, Fant Milling Company, .a corporation, caused to be issued, and there was duly issued, out of this Court a writ of execution upon and pursuant to said judgment aibove described, which writ of execution was returnable in 90 days and the same was duly delivered to the defendant, Bill Decker, Sheriff of Dallas County, Texas, on the 3rd day of February, 1950, and the following return was made by him, through his deputy, to wit: ‘Came to hand 3 day of Feb. A.D. 1950 and returned on the 26 day of April, A.D. 1950 no property found in Dallas County belonging to defendant subject to execution. Fee $1.00. Bill Decker, Sheriff Dallas County, Texas By: /s/ W. B. Bass, Deputy.’ (3) The defendant Bill Decker, Sheriff of Dallas County, Texas, through his deputy, W. B. Bass, immediately upon receipt of said writ of execution went to the premises known as 602 North Fleming Street in the City and County of Dallas, Texas .and found a Melvin May in possession of a small feed store with old fixtures therein of an estimated value of about Sixty ($60) Dollars, and a small stock of feed, the estimated value thereof being between Two Hundred ($200) and Three Hundred ($300) Dollars; that when the said Bass asked the said Melvin May who the owner of said feed Was the said Me'lvin 'May told Bass that the. said feed was placed therein on a consignment basis. (4) That after said visit’between the'said’-Bass-'and the said -Melvin May, the defendant' Bill Decker, in a conversation with said Melvin May, was advised by May. that the feed in said premises, in his possession, was purchased upon a consignment basis, delivery ■thereof being from day to day, and that the said feed was thus -purchased from the Universal Mills and -Burrus Feed and Elevator Company, which facts were later ■verified by the said Bill Decker in conversations with officials of the said .Universal Mills and Burrus Feed, and Elevator Company. (5) That the real estate and fixtures of the premises at 602 North Fleming Street, Dallas, Texas, in possession of the said Melvin May were found by the defendant,- .Bill Decker, to- have been heavily mortgaged. (6) That after the facts hereinabove stated in paragraphs (3), (4) and (5) herein were ascertained, the defendant, Bill Decker, communicated with the attorneys of record for the Fant Milling Company, a corporation, advising of the circumstances and requesting that an indemnity bond be executed by the said Fant Milling Company in favor of the said Bill Decker indemnifying him against all losses to all parties owning or claiming title or an interest in and to said feed and fixtures hereinabove described, and that the said Fant Milling Company failed and refused through their attorneys of record to furnish the requested indemnity bond and insisted upon the defendant, Bill Decker, levying upon said fixtures and feed and^ thereupon, the said Bill Decker, through his deputy, W. B. Bass, made the return on the said writ of execution as shown hereinabove. (7) That, the Fant Milling Company, a corporation, at the hearing upon its motion for damages against the defendant, Bill Decker, and his bondsmen, introduced the following evidence: (a) the judgment of this court in the above entitled and numbered cause, including the portion hereinabove described in paragraph numbered 1 -hereof; (b) the writ of execution duly issued by the Clerk of this Court on February 2, 1950, the return thereon being the same as the return hereinabove quoted in paragraph 2 hereof; (c) elicited from a single witness, an employee of the Fanf Milling Company, a corporation, that he .had 'been by the premises known as 602 North Fleming Street, Dallas, Texas about a year prior to the date of the motion hearing and.that he saw some feed in the premises and that the .said defendant, Melvin May,- was in the building located at said address but that the witness -had no conversation with the [448]*448said Melvin May at that time or any subsequent time, and the witness could not testify as a positive fact that the feed which he saw in the building at said address belonged to the said Melvin May; and that after the plaintiff had introduced the foregoing evidence and testimony, he rested his case. Whereupon the defendant, Bill Decker and the defendant, Great American Indemnity Company, through their attorney, moved for judgment on the ground that the plaintiff 'had not established a prima-facie case and the said defendants, under an agreement with the court whereby they should not be considered to have waived their right to judgment, proceeded to introduce their evidence showing the other matters of fact as hereinabove found by the court. Conclusions of Law: (1) That the defendant, Bill Decker, was apprised of such facts with regard to the ownership of or the assertion of an interest in the feed and fixtures found in the building at the premises known as 602 North Fleming Street, Dallas, Texas by third parties to justify his conclusion that there existed a potential liability if he levied upon the alleged feed and fixtures described in plaintiff’s motion 'herein and that he was justified under the facts and the law to demand of the plaintiff, Fant Milling Company, a corporation, an indemnity bond indemnifying him for any damages for which he might be found liable as a result of the levy upon, seizure and sale of the said alleged fixtures and feed. (2) Since the Fant Milling Company refused to comply with the request of defendant, Bill Decker, to furnish him an indemnity bond, he was justified in. refusing to make a levy upon the alleged feed and fixtures at 602 North Fleming Street, Dallas, Texas and the plaintiff cannot recover damages for his alleged failure to make a levy thereon.
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NOUNG, Justice.
This suit was filed by appellant against Sheriff Bill Decker of Dallas County and surety on his official bond under Art. 3825, Vernon’s Ann.Civ.St, seeking to fix liability for failure and refusal to levy on certain merchandise and fixtures described as the property of judgment debtor, Melvin May. Before making return of nulla bona on the execution in question, the Sheriff made request on the judgment creditor (appellant) to post an indemnity bond, which was refused. The appeal is by Fant Milh ing Company from adverse'judgment rendered on trial to the court.
The material facts and issues involved are sufficiently ^reflected in findings arid conclusions ' duly filed by the trial court, viz.: “(1) That on the 12th day of January, 1950 plaintiff, Fant Milling Company, a corporation, recovered judgment against Melvin May, dba Dallas Feed Company, said judgment providing, among other things, as follows: ‘It is therefore ordered, adjudged and decreed that the plaintiff, Fant Milling' Company, do have and recover of the defendant, Melvin May, doing -business as Dallas Feed Company, its damages in the present sum of one thousand' two hundred and thirty-eight and 36/ sand two hundred and thirty-eight and 36/100 ($1,238.36) dollars" plus interest thereon at the rate of six (6%) per cent per annum from the 3rd day "of 'April 1949 plus [447]*447its costs in this cause expended, and that defendant, Melvin May, doing business as Dallas Feed Company, take nothing by his cross action herein filed, and that as to such cross action Fant Milling Company go hence with its costs without day; for all of which let execution issue.’ And that said judgment is final, no appeal therefrom having been perfected during the time allowed by law. (2) That on February 2, 1950 plaintiff, Fant Milling Company, .a corporation, caused to be issued, and there was duly issued, out of this Court a writ of execution upon and pursuant to said judgment aibove described, which writ of execution was returnable in 90 days and the same was duly delivered to the defendant, Bill Decker, Sheriff of Dallas County, Texas, on the 3rd day of February, 1950, and the following return was made by him, through his deputy, to wit: ‘Came to hand 3 day of Feb. A.D. 1950 and returned on the 26 day of April, A.D. 1950 no property found in Dallas County belonging to defendant subject to execution. Fee $1.00. Bill Decker, Sheriff Dallas County, Texas By: /s/ W. B. Bass, Deputy.’ (3) The defendant Bill Decker, Sheriff of Dallas County, Texas, through his deputy, W. B. Bass, immediately upon receipt of said writ of execution went to the premises known as 602 North Fleming Street in the City and County of Dallas, Texas .and found a Melvin May in possession of a small feed store with old fixtures therein of an estimated value of about Sixty ($60) Dollars, and a small stock of feed, the estimated value thereof being between Two Hundred ($200) and Three Hundred ($300) Dollars; that when the said Bass asked the said Melvin May who the owner of said feed Was the said Me'lvin 'May told Bass that the. said feed was placed therein on a consignment basis. (4) That after said visit’between the'said’-Bass-'and the said -Melvin May, the defendant' Bill Decker, in a conversation with said Melvin May, was advised by May. that the feed in said premises, in his possession, was purchased upon a consignment basis, delivery ■thereof being from day to day, and that the said feed was thus -purchased from the Universal Mills and -Burrus Feed and Elevator Company, which facts were later ■verified by the said Bill Decker in conversations with officials of the said .Universal Mills and Burrus Feed, and Elevator Company. (5) That the real estate and fixtures of the premises at 602 North Fleming Street, Dallas, Texas, in possession of the said Melvin May were found by the defendant,- .Bill Decker, to- have been heavily mortgaged. (6) That after the facts hereinabove stated in paragraphs (3), (4) and (5) herein were ascertained, the defendant, Bill Decker, communicated with the attorneys of record for the Fant Milling Company, a corporation, advising of the circumstances and requesting that an indemnity bond be executed by the said Fant Milling Company in favor of the said Bill Decker indemnifying him against all losses to all parties owning or claiming title or an interest in and to said feed and fixtures hereinabove described, and that the said Fant Milling Company failed and refused through their attorneys of record to furnish the requested indemnity bond and insisted upon the defendant, Bill Decker, levying upon said fixtures and feed and^ thereupon, the said Bill Decker, through his deputy, W. B. Bass, made the return on the said writ of execution as shown hereinabove. (7) That, the Fant Milling Company, a corporation, at the hearing upon its motion for damages against the defendant, Bill Decker, and his bondsmen, introduced the following evidence: (a) the judgment of this court in the above entitled and numbered cause, including the portion hereinabove described in paragraph numbered 1 -hereof; (b) the writ of execution duly issued by the Clerk of this Court on February 2, 1950, the return thereon being the same as the return hereinabove quoted in paragraph 2 hereof; (c) elicited from a single witness, an employee of the Fanf Milling Company, a corporation, that he .had 'been by the premises known as 602 North Fleming Street, Dallas, Texas about a year prior to the date of the motion hearing and.that he saw some feed in the premises and that the .said defendant, Melvin May,- was in the building located at said address but that the witness -had no conversation with the [448]*448said Melvin May at that time or any subsequent time, and the witness could not testify as a positive fact that the feed which he saw in the building at said address belonged to the said Melvin May; and that after the plaintiff had introduced the foregoing evidence and testimony, he rested his case. Whereupon the defendant, Bill Decker and the defendant, Great American Indemnity Company, through their attorney, moved for judgment on the ground that the plaintiff 'had not established a prima-facie case and the said defendants, under an agreement with the court whereby they should not be considered to have waived their right to judgment, proceeded to introduce their evidence showing the other matters of fact as hereinabove found by the court. Conclusions of Law: (1) That the defendant, Bill Decker, was apprised of such facts with regard to the ownership of or the assertion of an interest in the feed and fixtures found in the building at the premises known as 602 North Fleming Street, Dallas, Texas by third parties to justify his conclusion that there existed a potential liability if he levied upon the alleged feed and fixtures described in plaintiff’s motion 'herein and that he was justified under the facts and the law to demand of the plaintiff, Fant Milling Company, a corporation, an indemnity bond indemnifying him for any damages for which he might be found liable as a result of the levy upon, seizure and sale of the said alleged fixtures and feed. (2) Since the Fant Milling Company refused to comply with the request of defendant, Bill Decker, to furnish him an indemnity bond, he was justified in. refusing to make a levy upon the alleged feed and fixtures at 602 North Fleming Street, Dallas, Texas and the plaintiff cannot recover damages for his alleged failure to make a levy thereon. (3) The plaintiff, Fant Milling Company, a corporation,' failed to establish a prima-facie case in that it did not prove that there was property in the 'hands of the said Melvin May at any time between February 3, 1950 and April 26, 1950 which belonged to him and which was subject to forced sale under said writ of execution. (4) Since the defendant, Bill Decker, was not liable for failure to make a levy and forced sale of said property, the defendant, the Great American Indemnity Company, surety on the official bond of the said Bill Decker, is not liable to the plaintiff, the Fant Milling Company, a corporation.”
Specifically, it was the testimony of George Lake, appellant’s witness and employee, that he was actually in the store of Melvin May about a year previous to the trial, passing by several times in early part of 1950, observing that the store, with fixtures and stock of feed, was open for business. Sheriff Decker stated on cross-examination that he did not check the County Court records for consignment contracts, merely for mortgages, — testifying: “I don’t know whether it was on open account or how it was sold to him. It was consignment or open account, I don’t know. He said that they sent him enough merchandise to do business every day, now that is his statement. I am not vouching for it.” In the same connection Deputy Bass testified: “Q. What terms were they selling the merchandise on, consignment or — A. That is right, from week to week and month to month.”
From the view we take of appellant’s case as made, same may be fully disposed of by a discussion of its points 1 and 6, complaining of the trial court’s error “in holding that Bill Decker, Sheriff of Dallas County, was entitled to an indemnity bond before levying writ of execution on stock of goods, wares and merchandise daily exposed to sale, which was in the possession of the judgment debtor and which, by the defendant, Bill Decker’s, own evidence, were sold to said judgment debtor on open 'account by general creditors,” and “in concluding that the defendant, Bill Decker, was not liable for failure to make levy and sale of the property of the defendant in execution, and :that, since he was not liable, his surety, Great American Indemnity Company, was not liable with him.”
The plaintiff in execution cannot be required to' indemnify the officer in a levy on real property; Bryan v. Bridge, 6 Tex. 137; Illes et al. v. Fitzgerald, 11 Tex. 417; for the reason that he will not thereby be subjected to a suit for damages. Wilson v. [449]*449Dearborn, Tex.Civ.App., 174 S.W. 296. “* * * With respect to chattels, however, the law has always recognized that the officer should be conceded the right to protect himself from a potential liability, notwithstanding that the chattels are in the possession of the debtor and are apparently subject to levy under the writ; and in the case of an attachment this right is recognized by statute. The officer is therefore within his rights in requiring indemnity where the defendant in the writ claims that the chattels are exempt from execution, or where some third person claims chattels that the officer believes to be available for levy under the writ, or where there exists some other ground for apprehending that a claim in trespass or conversion will follow a seizure of chattels specified in the writ or any property under a writ authorizing a levy on the debtor’s property generally. Moreover, if a doubt should arise as to his right to proceed to a sale of chattels, the officer may exact indemnity after seizure and before sale. As has been pointed out, any other rule would require the officer to determine the ownership of the chattels at his peril, and. the true effect of R.S. Art. 6873 requiring the sheriff to execute all process and precepts directed to him by legal authority is not to abrogate the ancient practice in this matter.” 38 Tex.Jur. 512, sec. 71.
The text just quoted has support in numerous Texas decisions, under which holdings the officer is conceded a right of indemnity upon reasonable ground of apprehension that a levy would result in a claim against him for wrongful seizure. In Seasongood v. Campbell, Tex.Civ.App., 49 S.W. 407, it is stated without qualification that the officer had the right, before levying on personal property, a stock of goods, to require indemnity.
But appellant argues that the property in question constituted “goods, wares or merchandise daily exposed to sale, in parcels, in the regular course of business” of such Melvin May, within purview of Art. 4000, Vernon’s Ann.Civ.Sts., against which no lien could attach; and this, together with statements of the storekeeper that same was purchased from named wholesalers on open account, fixed ownership in May; and, in consequence, properly subject to execution. On the other hand, we must take a realistic view of the record as a whole and of the situation actually confronting the officer, i.e., notice of the likelihood that the merchandise was being handled on a basis of consignment. Testimony to the latter effect, though meager, was sufficient, we think, to render applicable the general rule that “if a sheriff to whom process has been given for service entertains a doubt as to the title to the property to be levied on, he may demand indemnity, and is under no obligation to act unless it be given.” 24 R.C.L. 972; Pappe v. Law, 169 Okl. 15, 35 P.2d 941, 95 A.L.R. 943. “If personal property were taken, the sheriff, if he doubted the title of the defendant in execution, might demand a bond of indemnity from the plaintiff before sale. * * Bryan v. Bridge, supra.
The only estimate concerning value of the May fixtures and feed was $60 for the first item and, for the other, between $200 and $300. (See findings above, paragraph 3.) Even if we be mistaken in our conclusions just reached, — in other words, that the sheriff’s demand for indemnity was unwarranted — his liability would not extend to full amount of appellant’s judgment, interest and costs (as is contended), but would be limited rather to a maximum sum of $360. “According to a literal reading of the statutes, for failure to levy or sell, or for failure to return an execution, the officer and his sureties are liable for ‘the full amount of the debt, interest and costs.’ However such an interpretation has been rejected in favor of construing the statutes, according to the probable intent of the Legislature, by allowing a recovery of the actual loss accruing from the officer’s breach of duty; that is to say, if the value of the property that might have been levied on is less than the debt, interest and costs, then such value is the amount for which the plaintiff in the writ is entitled to judgment on the motion. However, the burden of pleading and proving that less than the full amount of the debt, interest and costs could have been recovered by diligence in executing the writ is upon [450]*450the officer. * * (Emphasis ours) 38 Tex.Jur. 472, sec. 36. Appellant relies largely on Hackler v. H. Kohnstamm & Co., Tex.Civ.App., 227 S.W.2d 347, recently decided by this Court, where there was no request for indemnity. We do not regard this case as controlling of the instant facts, other than so far as may be relevant to the alternative views expressed in this paragraph.
On the record as a whole, however, we are in harmony with the foregoing conclusions of the trial court; accordingly the judgment in question must be affirmed.
BOND, C. J., dissents.