Wootton v. Wheeler

Decided July 1, 1858

Texas Supreme Court · decided 1858-07-01

Tried below before the Hon. Fielding Jones. This was a proceeding by the appellee, for the trial of the right of property in two negroes, levied upon by virtue of an execution in favor of the appellant, against William Means. The execution was levied on the 6th of March, 1858; and the sheriff’s return showed that the negroes were found by him upon the plantation of the defendant in execution.

Good law ✅— No negative treatment on recordhow we know

Decided 1858-07-01

How this case has been cited

Cited by 11 later decisions — most recently May 1977

11 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Wheeler, Ch. J.

¶1The appellee asserted his claim to the property, under the deed of the 18th of October, 1846. That instrument is but a mortgage, with a power to sell added thereto. (4 Kent’s Com. 146 ; 16 Tex. Rep. 474.) And it is the settled 1ÚAV of this state, that mortgaged property is liable to execution against' the mortgagor, subject to the lien created by the mortgage. (Gilliam v. Henderson, 12 Tex. Rep. 47; Bullard v. Anderson, 18 Id. 377.) The mortgagee was not entitled to hold the property, exempt from liability to be taken and sold, subject to his lien, under execution against the mortgagor. The *340present cannot be distinguished from the case of Wright v. Henderson, 12 Tex. Rep. 43; and Gilliam v. Henderson, Id. 47. Upon the principle of these cases, the claimant manifestly had no canse of action. And as the objection goes to the foundation of the action, the judgment must be reversed and the cause dismissed.

¶2Reversed and dismissed.