121 S.W. 868

LEON MERCANTILE CO. 
v. 
ANDERSON et al.

Court of Civil Appeals of Texas.
June 19, 1909.
Rehearing Denied October 16, 1909.

        Appeal from District Court, Freestone County; L. B. Cobb, Judge.
        Proceedings by the Leon Mercantile Company for the satisfaction of a judgment by issuing execution 
on a liquor dealer's license issued to the judgment debtor, in


Page 869
which D. J. Anderson appeared as claimant of the property. From a judgment for the claimant and 
execution defendant, the execution plaintiff appeals. Affirmed.
        Wm. Watson and Jno. A. Newsome, for appellant. D. T. Garth, for appellees.
        BOOKHOUT, J.
        Appellant, Leon Mercantile Company (incorporated), recovered judgment against one T. H. Smith in 
the county court of Leon county, Tex., on the 8th day of January, A. D. 1907, for $888.40. Execution was 
issued on the 2d day of September, A. D. 1907, and returned nulla bona. Alias execution was issued on 
said judgment to Freestone county, Tex., on the 16th day of September, A. D. 1907, and it was placed in 
the hands of the sheriff of said county of Freestone, who on the 1st day of October, 1907, levied upon a 
liquor dealer's license issued by the authorities of Freestone county to T. H. Smith. D. J. Anderson filed an 
affidavit and bond for a trial of the right of property to the same, and a trial resulted in judgment in favor 
of the claimant, Anderson, and defendant appeals.
        There is neither a statement of facts nor bill of exceptions in the record. The trial judge filed 
conclusions of fact and law as follows:
"Conclusions of Fact and Law.
"Leon Mercantile Co. v. D. J. Anderson et al.
"No. 3,737, District Court, Freestone County.
        "Suit to try the right of property in retail liquor dealer's license issued to T. H. Smith in Freestone 
county, under Laws of 1907, levied on in execution out of county court of Leon county, upon judgment in 
favor of plaintiff against Smith on debt antedating the license. Defendant claimed the license on the 
ground that he provided the money to pay for same, and that, though in Smith's name, the license was 
his property, and the business conducted, that of retail liquor dealer, was his. The plaintiff replied that 
defendant was a citizen of Navarro county, and hence incompetent to own the license, and was estopped 
to claim same against plaintiff's levy.
        "The facts are that in July, 1907, T. H. Smith, by proceeding in his name, instituted by an attorney 
employed by defendant, procured the license, it being agreed between him and defendant that the license 
should be so procured, as I infer and find, to evade the law against the grant of license to nonresidents of 
the county, and that the business should be defendant's, and the licensee, Smith, to be engaged as his 
employé in the business. Smith owed the plaintiff, and the debt had been put in judgment, in the sum of 
$888.40, and alias execution on said judgment was on the 1st day of October, 1907, levied on said license 
as the property of Smith. Defendant Anderson was when the license was obtained, and yet is, a citizen of 
Navarro county. He provided the money to procure and to pay for the license, and owned the business 
carried on under the license in said Smith's name, and spent about three days in each week in the saloon 
and in charge of the business, at which times Smith was absent, while Smith had charge the other days in 
the week. Anderson was in actual charge and possession of the business and license when the levy was 
made. Plaintiff had no notice of the agreement of defendant with Smith, nor of defendant's ownership of 
the license, except such as might be inferred from his occupancy of the house and conduct of the business 
at the time of the levy.

"Conclusions of Law.
        "The agreement of defendant and Smith was contrary to law, and the license was open to 
cancellation in any proper action taken in the name of the state.
        "The plaintiff was not a lienholder for value, without notice of defendant's ownership of the license, 
and therefore could not take defendant's property to pay Smith's debt.
        "As the state did not elect to forfeit the license, the plaintiff in its private action [could not] enforce 
the penalty of violated law and take the benefit of the state's nonaction.
                      L. B. Cobb, Judge."
        These conclusions of law announce correct propositions, and are adopted by this court.
        The judgment is affirmed.