KANAMAN v. HUBBARD et al., 222 S.W. 151

GREENWOOD, J. The writ of error was granted because of the conflict between the decision of the Galveston Court of Civil Appeals in the case of Taylor v. Felder, 23 S. W. 483, with the decision herein of the Dallas Court of Civil Appeals.

In the former case it was held to be the duty of a plaintiff, causing a distress warrant to be levied on personal property, to see that the property seized was properly treated by the officer and applied to the discharge of the debt sued on, and that hence the defendant whose property was seized could have his debt to the plaintiff credited with any loss incurred through the default or negligence of the officer in the execution of the distress warrant.

In this case it was decided that the plaintiffs in attachment were not liable to the defendant for damages to an automobile of the defendant, occasioned by the wrongful acts of the sheriff, while he held the automobile under the attachment. 160 S. W. 307. The holding herein was in accordance with the conclusion of the Galveston Court of Civil Appeals in a later case than Taylor v.

Felder, to the effect that where a horse died, while in the possession of a sheriff under a writ of attachment, not wrongfully issued, as the result of negligence on the part of the sheriff, there was no liability on the part of the plaintiff in attachment to the defendant in attachment. McFaddin v. Sims, 43 Tex. Civ. App. 598, 97 S. W. 337.

The liability of an attaching plaintiff for a sheriff’s tort to property held under attachment, rightfully issued, must rest on the assumption either that the sheriff in proceeding under the writ acts as the agent or servant of the plaintiff or that the levy operates as a satisfaction of the plaintiff’s debt to the extent of the value of the seized property. Our statutes negative either assumption. The sheriff derives his power to seize and hold the attached property, not from the plaintiff nor from the defendant, but from the statutes, which declare the will of the state.

The sheriff is no more subject to direction or control from the plaintiff than from the defendant as to the manner in which he keeps personal property, under levy of a writ of attachment, until final judgment. Articles 252, 255, 256, R. S. The effect of the levy is to create a lien on the attached property, but there is no satisfaction of the plaintiff’s debt until the property is sold under the judgment'foreclosing the lien. Articles 257, 268, R. S.; Cravens v. Wilson, 48 Tex. 339.

This case discloses a tort committed by the sheriff when he was under a duty to both the plaintiffs and defendant in the attachment suit. The tort resulted in injury to both the plaintiffs and the défendant, but the tort was a breach of a duty owing by the sheriff and not by the plaintiff in attachment. He, who owed the duty, and his sureties, who were responsible for its faithful performance, must be held accountable for the breach of the duty, and not another who was a stranger to the duty.

The plaintiffs in attachment, according to the facts in this record, have done nothing save to enforce a righteous demand conform-ably to law. The tort of the sheriff has not relieved the defendant in attachment of his obligation to satisfy the demand to secure which the attachment was issued. Should the defendant satisfy the plaintiffs’ demand, he will then be alone entitled to enforce and collect the liability of the sheriff and his sureties. Otherwise, any recovery for the sheriff’s tort will be applicable first to the payment of the plaintiffs’ debt.

In the face of plaintiff in error’s resistance to the return of the sum received for the car, when it was tendered back to him, and of the deceit which appears to have been necessary to negotiate a sale at that price, we do not think the conclusion' of the Court of Civil Appeals should be disturbed that some pecuniary injury from the fraud was shown to have been sustained by defendants in error.

It is therefore unnecessary for us to determine whether a court of equity would not order .a rescission for fraud in the absence of a showing of actual pecuniary loss, for, were the necessity recognized for the showing of such loss to warrant the relief of rescission in equity, certainly any appreciable prejudice, though slight in amount, would be sufficient. 12 R. C. L. § 139;. Pomeroy on Contracts, § 227. The judgment of the Court of Civil Appeals is affirmed.