WILLIAMS, Associate Justice.
Appellee Felder rented to J. W. Morgan, for the year 1891, a farm situated in Wharton County, for the rent of which Morgan executed his note to appellant for $500. During' the year Felder advanced to Morgan bacon of the value of $73.20. During the months of August, September, and October, 1891, without appellee’s consent, Morgan gathered, removed from the rented premises, and sold to appellants cotton which he had produced thereon.
About November 8, 1891, appellee, who lived in Washington County,
went down to Wharton County and demanded of Morgan the sums due for rent and advances. The latter expected appellants to pay appellee out of the cotton which had been delivered to them, and requested them to do so, but they refused. Thereupon, on the 8th of November, 1891, appellee sued out a distress warrant against Morgan, and caused the officer in whose hands it was placed to demand of appellants that they point out, to be levied upon, the cotton which they had purchased from Morgan, or to furnish information by which it might be identified and seized; all of which appellants declined to do, having shipped the cotton and converted it to their own use. Appellee caused the corn and cotton remaining on the rented premises, most of it still standing ungathered in the field, to be levied upon under the distress warrant, and on November 27 filed in the District Court, to which the writ was returnable, his petition against Morgan and appellants, by which he sought judgment against the former for the sum due for rent and advances, and against the latter for the value of the cotton converted by them, or such portion of it as was necessary to satisfy his claim. Subsequently he filed a supplemental petition, alleging the amount which had been realized from the property levied on under the distress warrant, and asking judgment for the balance of the debt originally sued for remaining after deducting such amount. It was stated in the plea, that by agreement between plaintiff, the sheriff, and Morgan, the cotton levied on had been sold for plaintiff’s account, and the corn delivered to him at an agreed price, and that Morgan had thus become entitled to the credit allowed.
The defendants’ pleadings raised the questions discussed in the opinion.
The first point raised by the brief of appellants arises from the overruling of the exceptions to the petition, based on the ground that it did not show that plaintiff was entitled to the property.
We deem it well settled, that a lien holder may maintain an action for damages against one who has wrongfully converted the security. That a landlord may do so, is settled by the decisions in this State. It is not essential that he have the right of possession. Templeman v. Gresham, 61 Texas, 50. The plaintiff brought his case within the principle, both by his allegations and proof.
It is claimed by appellants, that appellee had lost his lien on the cotton received by them, because it had been removed from the rented premises more than a month before they were sued. It is true the petition in which they were joined in the suit was not filed until November 27, and the evidence showed that appellants had received all of the cotton before October 27. But the proceedings to pursue and subject the property were commenced by the suing out of the distress warrant, which was done on the 8th of November. This was sufficient to prevent the running of the period limited by the statute. The plaintiff in such a case is not
required to file
his
petition at the beginning of the proceeding, but may wait until the appearance day of the next term of the court to which the writ is made returnable. And as the distress writ may be levied on the property wherever and in whatever hands it may be found, the suing of it out against the tenant is, in our judgment, all that the statute contemplates in order to prevent the loss of the lien by lapse of time. When the landlord pursues this course, and is prevented from reaching the property by the party who has converted it, he may properly join such party in his suit against the tenant, as has been done. Templeman v. Gresham, supra.
It was not error to refuse the requested charge, that if the cotton was converted prior to October 27, plaintiff had lost his lien.
At the trial it appeared, that after the levy of the writ an agreement was made between. the sheriff, the plaintiff, and Morgan that the crops should be left in the charge of the latter, and that he should gather them and deliver the cotton to the sheriff, tobe shipped for plaintiff’s account, and should deliver the corn to the plaintiff. The property levied on was valued by the sheriff at §1046, and both Felder and Morgan, at the time of the levy, estimated it at considerably more than was received by plaintiff and applied on his debt. There was evidence to the effect, that after the levy, and while Morgan had charge of the crops under the stated agreement, stock depredated upon and destroyed a portion of the corn, and that Morgan fed his stock from it. The expense of gathering and selling was stated in the supplemental petition.
The appellants requested the following special charges, which were refused by the court, and none were given submitting to the jury the issues thus sought to be presented:
“ If you believe from the evidence in this case, that under the distress warrant the sheriff of Wharton County, by his deputy, Hughes, seized and took into his possession personal property, viz., corn and cotton, of the defendant Morgan of sufficient value to pay said plaintiff’s debt, and by the careless management or improper attention of said sheriff, or the party placed in charge of said property, the said property depreciated in value or was lost or destroyed, in whole or in part, then the plaintiff or said sheriff is chargeable with said loss, and defendants Taylor will be entitled to credit, if you find against them, on the amount so found for the value of such loss.”
“ When personal property, for instance, corn and cotton, seized under a writ issued for the purpose of collecting or securing the payment of money, is of sufficient value to discharge the claims sought to be collected or secured by such seizure, it is prima facie evidence of the satisfaction or payment of said claim; and the burden of proof is on the party seeking to avoid the said result of said seizure of said property to show that it was properly applied and did not discharge the debt; therefore, if you believe from the evidence that personal property of value sufficient to
have paid off and discharged said debt of plaintiff for rent was seized, then you will find that the same has been paid, unless the plaintiff has by the preponderance of evidence deemed by you to be credible shown that said property was not of value alleged in the return of seizure on said writ.”
In support of their contention that the refusal of these charges was error, appellants’ counsel cite authorities as to the effect of the levy of an execution upon personal property which undoubtedly sustain, as the law applicable to such levies, the rule contained in the last of the above charges. Freem. on Ex., 269, and authorities cited.
The same rule has been recognized by our Supreme Court. Bryan v. Bridge, 10 Texas, 149; White v.
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WILLIAMS, Associate Justice.
Appellee Felder rented to J. W. Morgan, for the year 1891, a farm situated in Wharton County, for the rent of which Morgan executed his note to appellant for $500. During' the year Felder advanced to Morgan bacon of the value of $73.20. During the months of August, September, and October, 1891, without appellee’s consent, Morgan gathered, removed from the rented premises, and sold to appellants cotton which he had produced thereon.
About November 8, 1891, appellee, who lived in Washington County,
went down to Wharton County and demanded of Morgan the sums due for rent and advances. The latter expected appellants to pay appellee out of the cotton which had been delivered to them, and requested them to do so, but they refused. Thereupon, on the 8th of November, 1891, appellee sued out a distress warrant against Morgan, and caused the officer in whose hands it was placed to demand of appellants that they point out, to be levied upon, the cotton which they had purchased from Morgan, or to furnish information by which it might be identified and seized; all of which appellants declined to do, having shipped the cotton and converted it to their own use. Appellee caused the corn and cotton remaining on the rented premises, most of it still standing ungathered in the field, to be levied upon under the distress warrant, and on November 27 filed in the District Court, to which the writ was returnable, his petition against Morgan and appellants, by which he sought judgment against the former for the sum due for rent and advances, and against the latter for the value of the cotton converted by them, or such portion of it as was necessary to satisfy his claim. Subsequently he filed a supplemental petition, alleging the amount which had been realized from the property levied on under the distress warrant, and asking judgment for the balance of the debt originally sued for remaining after deducting such amount. It was stated in the plea, that by agreement between plaintiff, the sheriff, and Morgan, the cotton levied on had been sold for plaintiff’s account, and the corn delivered to him at an agreed price, and that Morgan had thus become entitled to the credit allowed.
The defendants’ pleadings raised the questions discussed in the opinion.
The first point raised by the brief of appellants arises from the overruling of the exceptions to the petition, based on the ground that it did not show that plaintiff was entitled to the property.
We deem it well settled, that a lien holder may maintain an action for damages against one who has wrongfully converted the security. That a landlord may do so, is settled by the decisions in this State. It is not essential that he have the right of possession. Templeman v. Gresham, 61 Texas, 50. The plaintiff brought his case within the principle, both by his allegations and proof.
It is claimed by appellants, that appellee had lost his lien on the cotton received by them, because it had been removed from the rented premises more than a month before they were sued. It is true the petition in which they were joined in the suit was not filed until November 27, and the evidence showed that appellants had received all of the cotton before October 27. But the proceedings to pursue and subject the property were commenced by the suing out of the distress warrant, which was done on the 8th of November. This was sufficient to prevent the running of the period limited by the statute. The plaintiff in such a case is not
required to file
his
petition at the beginning of the proceeding, but may wait until the appearance day of the next term of the court to which the writ is made returnable. And as the distress writ may be levied on the property wherever and in whatever hands it may be found, the suing of it out against the tenant is, in our judgment, all that the statute contemplates in order to prevent the loss of the lien by lapse of time. When the landlord pursues this course, and is prevented from reaching the property by the party who has converted it, he may properly join such party in his suit against the tenant, as has been done. Templeman v. Gresham, supra.
It was not error to refuse the requested charge, that if the cotton was converted prior to October 27, plaintiff had lost his lien.
At the trial it appeared, that after the levy of the writ an agreement was made between. the sheriff, the plaintiff, and Morgan that the crops should be left in the charge of the latter, and that he should gather them and deliver the cotton to the sheriff, tobe shipped for plaintiff’s account, and should deliver the corn to the plaintiff. The property levied on was valued by the sheriff at §1046, and both Felder and Morgan, at the time of the levy, estimated it at considerably more than was received by plaintiff and applied on his debt. There was evidence to the effect, that after the levy, and while Morgan had charge of the crops under the stated agreement, stock depredated upon and destroyed a portion of the corn, and that Morgan fed his stock from it. The expense of gathering and selling was stated in the supplemental petition.
The appellants requested the following special charges, which were refused by the court, and none were given submitting to the jury the issues thus sought to be presented:
“ If you believe from the evidence in this case, that under the distress warrant the sheriff of Wharton County, by his deputy, Hughes, seized and took into his possession personal property, viz., corn and cotton, of the defendant Morgan of sufficient value to pay said plaintiff’s debt, and by the careless management or improper attention of said sheriff, or the party placed in charge of said property, the said property depreciated in value or was lost or destroyed, in whole or in part, then the plaintiff or said sheriff is chargeable with said loss, and defendants Taylor will be entitled to credit, if you find against them, on the amount so found for the value of such loss.”
“ When personal property, for instance, corn and cotton, seized under a writ issued for the purpose of collecting or securing the payment of money, is of sufficient value to discharge the claims sought to be collected or secured by such seizure, it is prima facie evidence of the satisfaction or payment of said claim; and the burden of proof is on the party seeking to avoid the said result of said seizure of said property to show that it was properly applied and did not discharge the debt; therefore, if you believe from the evidence that personal property of value sufficient to
have paid off and discharged said debt of plaintiff for rent was seized, then you will find that the same has been paid, unless the plaintiff has by the preponderance of evidence deemed by you to be credible shown that said property was not of value alleged in the return of seizure on said writ.”
In support of their contention that the refusal of these charges was error, appellants’ counsel cite authorities as to the effect of the levy of an execution upon personal property which undoubtedly sustain, as the law applicable to such levies, the rule contained in the last of the above charges. Freem. on Ex., 269, and authorities cited.
The same rule has been recognized by our Supreme Court. Bryan v. Bridge, 10 Texas, 149; White v. Graves, 15 Texas, 187; Garner v. Cutler, 28 Texas, 178; Cornelius v. Burford, 28 Texas, 206, 207.
The rule, that a levy upon personal property operates as a satisfaction of the judgment, is said not to apply to levies under attachments, but only to those made by virtue of executions. Drake on Attach., sec. 222; McBride v. Bank, 28 Barb., 476; Maxwell v. Stewart, 22 Wall., 77. In the former case it is said: “A seizure of personal property under an order of attachment issued during the pendency of an action is not necessarily a satisfaction of the judgment when afterwards obtained. Such a seizure is made"for the purposes of security, and if the property is retained in the possession of the sheriff, he will be held responsible for the exercise of ordinary care for its preservation. If wasted, lost, or destroyed by his negligence, he must account; and the amount for which he is liable on such account will, when ascertained, be applied toward the satisfaction of any judgment that may have been obtained. To that extent the plaintiff is made responsible for the sheriff; but such an application can only be made upon a proper showing by the defendant. There is no presumption which throws the burden of proof upon the plaintiff.”
The opinion in the case of Heilbroner v. Douglass, 45 Texas, 406, might seem, at first sight, to give to levies under executions and attachments in "this respect the same consequences; but that case in its facts falls within the decision from which the above quotation is taken, and is no more than an application of that rule. The same observation is true of the decision in the case of Farrar v. Talley
&
Hester, 68 Texas, 352.
We think the rule laid down by the Supreme Court of the United States is the just one with reference to levies under attachments and other mesne process of similar character, including distress warrants; and we can not therefore hold that the second of the special charges above quoted should have been given, since it gave to the levy of the distress warrant the effect, prima facie, of a satisfaction of the debt, and put upon plaintiff the burthen of showing that the property had not been wasted, but properly preserved and applied. The true rule required the defendants, if there had been waste or loss of the property through the improper action
or lack of due care on the part of the plaintiff or the sheriff, to have developed the facts which entitled them to a satisfaction or reduction of the plaintiff’s claim.
As we have stated, there was evidence which tended to show negligence and waste in the management of the property, and the first of the requested charges sought in a proper manner the submission of this issue to the jury, and should have been given if the appellants were in an attitude to invoke the rule there stated.
As before seen, the defendant Morgan was a party to the agreement by which the property was left in his care, and if there was waste of it, he was responsible for it. He can not take benefit from his own dereliction, and is not entitled to any reduction of his debt because of any failure to realize the full value of the property seized.
With appellants it is otherwise. They were not parties to the agreement, and were in no way responsible for the manner in which the property was dealt with after the levy. No right of theirs can be taken away by an agreement to which they were not parties, nor by conduct of others in which they did not participate.
By their purchase of the cotton they acquired all the rights of the tenant therein; and when sued by the landlord for the value of such cotton, they could properly make any defense which the tenant could have made, unembarrassed by the agreement and conduct of the latter subsequent to such purchase. They held the cotton which they bought subject to the landlord’s lien, and had he proceeded directly against them for its value in order to satisfy his claim for rent and advances, without pursuing other property of the tenant, they could not have required him to .exhaust the property remaining in the hands of the tenant subject to his lien before reaching the fund held by them. Wilkes v. Alder, 68 Texas, 690.
They acquired no right to make such a defense by their purchase from the tenant, because the latter had not such right. The landlord, having a lien on all of the property, could not have been forced either by the tenant or a purchaser from him to select one class of property rather than another out of which to seek satisfaction. But when the landlord actually levied upon propertjr of the tenant, he was bound to see that it was properly handled and realized; and if any loss occurred, either through his own negligence or that of the sheriff, the tenant, but for the fact that he was precluded by his own conduct from claiming it, would have been entitled, upon showing the facts, to have his debt credited with the amount of such loss.
In such a proceeding it is the duty of the plaintiff to the defendant to see that the property levied upon is properly treated and applied to the discharge of the debt; and a like duty extends to any third party who has bought from the tenant property charged with plaintiff’s lien, which he seeks to subject to his debt. He can not free himself from this duty
to third persons by an agreement with the defendant in the writ. The tenant may preclude himself from complaining, but can not preclude third persons, by his conduct transpiring after their rights have grown up.
The plaintiff has no more right to allow the defendant to waste the property to the prejudice of those whom he knows to have acquired the defendant’s rights, than to allow such waste to be done by the sheriff or others to the prejudice of the defendant.
The first of the charges quoted above should have been given.
The other alleged errors are not likely to occur at another trial.
For the error pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded.
Delivered October 12, 1893.