H. Austin v. W. C. White & Co., 1 Dallam 434

HUTCHINSON, Justice. Austin filed his petition or bill against White & Co., alleging that on May 4, 1840, they recovered in the court below, against him, $410.09, with costs; that execution thereon issued; that Austin designated to the sheriff 500 acres of land worth $2 per acre, and 1000 acres of land more, to be taken in execution according to the Act of January 26, 1839,

section 4; that the sheriff thereupon illegally levied also on 3328 acres more, not designated; that he advertised the whole for sale on twenty-nine days’ notice, which notice was of the 9th of June; that the obligation was made in view of a sale on thirty days’ notice according to that act; that nevertheless the sheriff was about to proceed under the Act of February 5, 1840, allowing a sale on twenty days’ notice, contrary to the Constitution; wherefore, the bill prays an injunction, etc.

The injunction was granted; but at October term, 1840, the court dissolved the injunction and decreed the costs against the plaintiff. This decree was in effect definite. Whether the subject matter of complaint was cognizable in chancery, or on the contrary was more properly the object of the action of the court in the common form by supersedeas, whereby the court might not only correct errors in its final process, but control illegal or oppressive proceedings of its sheriff, need not be here decided; for taking the matter to be cognizable in equity, it is not sufficient to justify an injunction.

It was competent for Congress to alter the remedy, as was done by the Act of 1840, prescribing twenty instead of thirty days’ notice for an execution sale. The clause in the Constitution referred to in the bill is in no degree invaded or violated. The laws of the land existing at the date of a contract do not enter into the contract so as to form portion and essence of it, but will be the criterion to define its scope and obligation. Its obligation is to do, or forbear, according to the engagement or stipulation.

The remedy to redress a breach of it in force at its date may be altered or modified according to the will of the Legislature, so that a full remedy of some sort be provided. This doctrine is so well established as to render a reference to authority superfluous. The bill only intimates a step toward oppression in the officer—an excessive levy on lands—and the relief sought is to limit him to a less quantity. We can not now know that the officer at the sale would have contravened the law.

The law and his oath to observe it require him to sell each tract separately until satisfaction is obtained; and we can not anticipate that he would have violated those sanctions. This cause coming on to be heard on the transcript of the record herein in the District Court of Brazoria, and it being inspected, because it seems to the court here that there is no error in the decree below, it is therefore considered by the court here that the same be affirmed; and that the appellees recover of the appellant their costs in this court expended. Affirmed.