Molette v. Hodges

1 White & W. 172

• Court: Court of Appeals of Texas
• Decided: April 19, 1883
• Docket: No. 2603, Op. Book No. 4
• Status: Published

Opinion

Opinion by

White, P. J.

§ 398. Personal property; sale of, under execution. Personal property taken in execution is by the statute required to be sold at the court house, on the premises or at some convenient place [Rev. Stats, art. 2311], and previous notice before sale must have been given of the time and place of sale for ten days successively, by posting up written or printed notices in at least three public places in the county. [Rev. Stats, art. 2312.]

§ 399. Trespasser ab initio, if sale is made at a different 'place than the one named in notice of sale. If personal property be sold under execution at a place different from the one named in the notice of sale, the sale is an improper one, and the officer making it would be liable and responsible as a trespasser ab initio. [ Freeman on Executions, § 290.] And his liability as a trespasser ab initio will attach, although the officer has paid over the proceeds, because he departed from the authority with which the law clothed him, by virtue of the execution, in making the sale where he did make it. It was only by virtue of that authority that he had any right to take, hold, sell, or apply the avails of the property. When he did the unlawful act of selling at a place not authorized, he lost the protection of the execution, and the act assumed the same legal character, and involved the same legal consequences, as if he had not held the execution. [Hall v. Ray, 40 Vermont, 576; Freeman on Executions, § 302.]

§ 400. Liability of plaintiff for wrongful act of officer. A plaintiff in execution is answerable for every act of an officer which he either directed or ratified. [Freeman on Executions, § 303.]

Reversed and remanded.