Orson Carey and another v. John T. Tinsley and another, 22 Tex. 383

Roberts, J. The appellees seek to enjoin the judgment of appellants, upon the ground, not that Tinsley, being one of the defendants therein, had paid the money to the sheriff, but that he, being in possession of the money, delivered it to the deputy sheriff, and directed him to levy upon it as the money of Lovett, who was also a defendant, and one of his principals, in the judgment. The question is, did Tinsley have possession of the money in such way as to make it liable to a levy in his hands ?

The evidence shows that he received the money for Parker, and that he was Parker’s agent, and not Lovett’s agent, to receive the money from the sheriff of Bastrop county, who had collected it on the judgment in the case of Lovett v. Pennell and Tinsley. Parker was Lovett’s attorney in controlling this judgment, and also had an assignment, in his own favor, of the money to be collected on the judgment; and Tinsley had been authorized by him to receive this money from the sheriff of Bastrop county, and he (Tinsley) had been apprised of Parker’s claim, and promised to pay it over to Parker.

Tinsley being defendant in both judgments, it was to his interest that this money, after satisfying one (that of Lovett v. Pennell and Tinsley) should be applied to the payment of the other, in which he was surety, (Carey, Reese & Co. v. Lovett, Pennell, Tinsley, and Branch.) His possession of the money was that of Parker, being merely his agent, to receive and bring to him the money collected on the Lovett judgment, from the sheriff of Bastrop county.

The money being delivered over by the deputy to the sheriff, together with the execution, he had a right not to levy upon it, if he found it was not subject to levy, under the circumstances under which it came into the hands of his deputy. And as he did not endorse a levy upon the execution, we must presume that he did determine not to treat it as money levied on by him, but to deliver it over to Parker, as the person entitled to its possession.

If he determined right in that matter, Carey, Reese & Co. were not bound to move against him, for not levying on the money thus placed in his hands, for levy, as the property of Lovett. There is no evidence that Tinsley, acting for Parker, in receiving and conveying this money, had his permission to deliver it to the sheriff as Lovett’s money, to be levied on; but, on the contrary, Tinsley had promised to deliver it to Parker, and had been apprised that Parker claimed it as his own, for advances made to Lovett.

The sheriff, then, upon ascertaining, as we may presume he did, from the evidence before us, that Tinsley had no such authority from Parker, and that Parker was entitled to the possession of the money, as assignee of Lovett, took the responsibility to deliver it to Parker, and to decline levying upon it, as property of Lovett, subject to levy. Prom the evidence before us, we are of opinion he did right. There is nothing in the case to impeach the transfer of the claim from Lovett to Parker.

There is a receipt of the deputy sheriff, for two hundred and twenty five dollars, claimed as a credit on the judgment in favor of Carey, Reese & Co., which is alleged by them to have been given by mistake. There is no certain evidence, whether this should be credited on the judgment or not; and therefore there are no certain data upon which to render a judgment. The judgment will be reversed, and the cause remanded for further proceedings. Reversed and remanded.