The verdict and judgment in the court below, in this case, are in favor of William Cravens, the defendant, against M. J. Wilson, the plaintiff and in favor of Benjamin Wilson, the intervenor, against William Cravens, the defendant, for the land in controversy, and the rents and profits thereof.
William Cravens made a motion for a new trial, as against the intervenor, and the motion having been overruled by the court, has brought the case to this court by writ of error, making M. J. Wilson one of the defendants in error.
M. J. Wilson seems to have acquiesced in the judgment in favor of Cravens against him; and but for the fact that he has assigned errors, and has appeared by counsel in this court, and filed his briefs, he might have been supposed to have passed entirely out of the case. We shall notice but' one of the errors assigned by him.
It is unnecessary to notice this, as the question presented by it is not an open question in this court. But it has been-very zealously, and we may add ably, pressed, in argument by counsel in their briefs, and therefore we think it but right to consider it, so that it may not embarrass the case on a future trial in the court below, should there be another trial.
The assignment to which we refer, is, substantially, that there is error in the portion of the charge of the court in which the jury is instructed that the lien of William Cravens’ judgment, rendered on 1st of January, 1867, on the-Domingo Gonzales tract of land, in Shelby county, Texas, was not lost by reason of the failure of the plaintiff in that judgment to have execution issued within twelve months-from the rendition of judgment.
The record shows, that execution was not issued on Cravens’ judgment until the 23d day of March, 1868, more than, a year after the rendition of the judgment.
From the time this judgment was rendered, until the 24th-of February, 1868, the Stay law of 1866 was in force; so that execution could not have been issued but a few days before *338it was issued, without disregarding the Stay law. On the 24th of February, 1868, this court decided the Stay law of 1866 to be unconstitutional. (Jones v. McMahan, 30 Tex., 719; Luter v. Hunter, 30 Tex., 688.)
These decisions doubtless gave rise to the belief, that the judgment of Cravens had lost its lien on the land in controversy, by reason of the failure of Cravens to have execution issued within twelve months from its rendition.
But this court has, as we think, settled the question, that a judgment rendered in 1865 or 1866 did not lose its lien on land, when execution was issued within the year from the -decision of this court declaring the Stay law of 1866 unconstitutional. In Phillips v. Lesser, 32 Tex., 741; Sessums v. Botts, 34 Tex., 335; and Cravens v. Wilson, 35 Tex., 52, this court has decided, that notwithstanding the Stay law of 1866 was unconstitutional, the practical effect of that law was to excuse the failure to have executions issued on judgments rendered during the years 1865 and 1866 within the year from their rendition; and that the liens of all such judgments have been preserved, where executions were first issued upon them within the year from the 24th of February, 1868, the date when the Stay law of 1866 was decided by this court to be unconstitutional. And in Black v. Epperson, 40 Tex., 185, these decisions are referred to with approbation by this court. As has been seen, Cravens’ execution was issued on the 23d day of March, 1868, less than a month after the Stay law of 1866 was declared to be unconstitutional. So that there can be no question, that the judgment of Cravens had not lost its lien on the land in dispute at the time his execution was levied on it; and being prior in date to the judgment of M. J. Wilson, it was a prior lien on the land.
The plaintiff in error has assigned quite a number of errors. We shall, however, notice only three of them. They are: 1st. As to the portion of the charge of the court in reference to the levy of the attachment on a sufficient quantity of cotton in the seed belonging to Benjamin Wilson, the defendant in *339the attachment, to satisfy the debt of William Cravens, being a satisfaction or extinguishment of the debt, unless the evidence showed that the cotton had been left by the sheriff on the premises in custody of the defendant in the attachment, &c. 2d. As to the portion of the charge instructing the jury in regard to the character of their verdict, in case they should find for the intervenor against the defendant. 3d. As to the verdict of the jury, and the judgment of the court thereon, as between the intervenor and defendant.
The first of these three assignments of error is well taken. If the writ levied by the sheriff on the 60,000 pounds of seed cotton had been an execution, instead of an attachment, the portion of the charge assigned as erroneous would have been correct.
In the case of Garner v. Cutler, 28 Tex., 176, it is decided, by this court, that a levy of an execution on personal property is, as a general rule, prima-fatie evidence of satisfaction of the execution, but that this presumption does not arise when possession of the property remains with the defendant in execution. (See, also, Cornelius v. Burford, 28 Tex., 202, in which the same principle is asserted.)
But this principle does not apply to the levy of an attachment on personal property. The writ of attachment merely creates a lien on the property attached, that may be lost by a dissolution of the attachment. (Drake on Attachments, sec. 224.) So if the attachment is not foreclosed by the judgment in the case, the lien created by it is lost. (Id., sec. 228.) Again, the author lays down the law in regard to levies on personal property by writs of attachment, in ex press terms to be different from that which applies to levies of executions on the same species of property. He says the levy of an attachment is no satisfaction of the plaintiff’s demand, as that of an execution is under same circumstances. (Id., sec. 222.)
It is manifest, therefore, that this portion of the charge is erroneous.
*340The second of the three assignments in regard to the portion of the charge in which the court directs the jury as to the character of their verdict, in case they find for the intervenor, Benjamin Wilson, against the defendant, Cravens, is likewise well taken.
If the sheriff was guilty of irregularities in the sale of the land under Cravens’ execution, whereby the land did not sell for as much as it was worth, the intervenor, Benjamin Wilson, who was defendant in the execution, being interested in his land selling at its highest market value, had the right to have the sale set aside. (Owen v. City of Savasota, 44 Tex., 518; Borer on Judicial Sales, secs. 862, 863.) He could proceed by motion in' the court from which the execution emanated, giving notice to the purchaser, by a distinct suit for that purpose, or by plea of intervention, as in this case. (See authorities above quoted.)
The evidence in this case clearly shows that the officer selling the land under Cravens’ execution was guilty of very great irregularity or misconduct in having the notices of the sale previous to the day of sale tom down, and in announcing publicly at- Center, where the property was sold, and privately to several persons on the day of sale, that the land would not be sold.
So the intervenor could proceed to have the sale set aside, for fraud, if. the facts in the case warrant the belief that the sale was fraudulent. (Rorer on Judicial Sales, sec. 862. See, also, Wright v. Calhoun, 19 Tex., 412; Calhoun v. Wright, 23 Tex., 522; Allen v. Stephanes, 18 Tex., 658.)
The plaintiff in the court below, M. J. Wilson, under the allegations in his pleadings in this case, might also have the sale set aside for irregularity, fraud, or a willful disregard of the laws as to the manner of selling, he being interested bona fide in the subject-matter of the sale, in consequence of his having a junior execution levied on the same land at the time of the sale under Cravens’ execution, and, being interested in the land selling for its highest market value, in order *341that any surplus left, after satisfying the balance due on Carvens' execution, might be applied to his execution, if the evidence m the case shows that these causes for setting aside the sale, or any of them, exist. (Borer on Judicial Sales, sec. 864, and the cases referred to in note 2, under that section.)
The facts in the case show that the land was sold under Cravens’ execution at $260, to Cravens, and that it was worth at the time from one thousand to fifteen hundred dollars. They also show that the sheriff had the notices of the sale torn down previous to the sale day, and that he, on the day of sale, announced publicly that the land in dispute would not be sold on that day, and that he told several persons on the ground the same thing. They also show that on the day of sale he and Cravens came out of the court-house together, and that the sheriff informed a man whom they met, while Cravens was standing near him, that the land in dispute would not be sold on that day.
According to the testimony, we think the land was sold to Cravens at a grossly inadequate price, and that the other facts and circumstances tend to show that the sale was fraudulent. But the question of fraud in the sale, vel non, is one of fact, to be determined by the jury that tried the case, and need not now be further discussed in this opinion, as it is manifest, from the verdict of the jury, that they did not find for the intervenor against Cravens on the ground that the sale was fraudulent.
There might be some question as to the diligence used by either M. J. Wilson or the intervenor to have the sale of the land under Cravens’ execution set aside. But no such question is raised by the pleadings in this case, and, therefore, we will not discuss it.
The intervenor, in his plea, claims the land as against the defendant Cravens, and in the prayer to his plea asks that the sheriff’s deed to Cravens may be set aside, and for general relief If, therefore, he was entitled to a recovery of *342the land in the court below against Cravens, he was also entitled, under the prayer for general relief, to the writ of possession, and to the value of the rents and profits of the land, whatever they may be. (Hardy v. De Leon, 5 Tex., 211; Trammell v. Watson, 25 Tex. Supp., 210.)
But beyond the land and the rents and profits, the recovery of the intervenor against Cravens, in the court below, could not legitimately extend.
But, in the portion of the charge of the court instructing the jury as to the character of the verdict they might find tor the intervenor (in case they found for him at all) against Cravens, they were directed to withdraw from the amount of the rents and profits of the laud they might find for the intervenor, the amount paid by Cravens for land at his execution sale, with eight per centum per annum from the date of payment, and to return a verdict for the balance, if any, for the intervenor against Cravens.'
The evidence in the case shows that Cravens did not pay out anything on his bid for the land, but that the amount of his bid was credited on his execution.
This portion of the charge is, therefore, hypothetical, and unwarranted by the evidence in the case.
Again, the court, in the portion of the charge instructing the jury as to the kind of verdict they might find for the intervenor against Cravens, (in case they found for him at all,) directs the jury, that if they found from the evidence that Cravens had, previous to the time of the sale of the cotton under execution by the sheriff, obtained a portion of the cotton levied on, and had sold the same, and if they further found that the amount of the proceeds of the sale of cotton under the execution credited, on the execution to Cravens, and the cotton obtained and sold by Cravens, were of sufficient value to satisfy Cravens’ judgment, with the interest thereon and the costs in the case, and that afterwards the land was levied on and sold, that the sale of the land was *343without authority, and they would find for the intervenor, Wilson, against Cravens.
It is not claimed by the intervenor, Benjamin Wilson, that Cravens obtained any of the cotton levied on, and sold the same previous to the sale under Cravens’ execution, or at any other time. The cotton, when attached by the sheriff at the suit of Cravens, was left by him in the custody and care of the intervenor, who was the owner of the cotton; and it remained in his custody until Cravens had his execution levied on it, in 1868. And there is no evidence that Cravens ever obtained any of the cotton previous'"to the sale under his execution. The cotton was in a house on the intervenor’s premises, near his dwelling-house, and had been, up to the time of the levy of the Cravens execution on it, in his care and custody; so that if Cravens obtained any of it previous to the sale, the intervenor must have known it. Yet the intervenor does not even pretend that Cravens obtained any of it.
When Cravens’ execution was levied on the cotton, the sheriff says he took charge of the cotton, and that none of it was taken away previous to the sale under execution, after the levy of the execution on it.
It is manifest, therefore, that this portion of the charge of the court is also hypothetical, and wholly unwarranted by the evidence in the case, as exhibited by the statement of facts.
These instructions to the jury, in regard to what should be their verdict in case they found for the intervenor against Cravens, evidently misled them, and caused them, in part at least, to find in favor of the intervenor against Cravens the very singular verdict disclosed by the record in this case.
The verdict of the jury is, substantially, as follows: “We, the jury, find, as to the first case between Matthew J. Wilson and William Cravens, in favor of the defendant, Cravens. As to the second case, we find in favor of the intervenor, Benjamin Wilson, against Cravens, after allowing Cravens his purchase-money of $365, with interest for seven years at *344eight per cent, per annum, which amounts to $571.83. We also allow Cravens the amount paid to E. S. Hearn, which is $173.96; from which we deduct the rents of said place for seven years at $100 per annum, leaving $45.79 as a balance due Cravens, and return the land to the intervenor, Wilson.”
The evidence in the case shows that the jury was mistaken as to the amount bid for the land by Cravens, and credited on his execution. The jury fix the amount in their verdict at $365, when the evidence in the case shows that it was $360. This, however, is a trifling mistake in the jury.
But why, in making up their verdict, they should have allowed Cravens the $173.96 of the proceeds of the sale of the cotton under Cravens’ execution, paid to E. H. Hearn on account of his having a prior hen on the cotton to that of Cravens, is incomprehensible to us. It had been paid over by the sheriff to Hearn, and could not, therefore, be taken from him, and given or allowed to Cravens, by the jury.
The verdict of the jury in this case is a very remarkable one, and, as we think, can only be accounted for on the hypothesis that they were misled by the charge of the court, and disregarded the evidence in the case.
The verdict is manifestly erroneous.
The judgment is in perfect harmony with the verdict of the jury; and the one being erroneous, it follows as a necessary consequence that the other is also.
For the several errors in the charge of the court, and the error in the verdict of the jury, and judgment of the court below, that have been examined and discussed in this opinion, the judgment of that court is reversed and the cause remanded.
Reversed and remanded.