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Rule 775. Property Sold
When personal property will not admit of a fair and equitable partition, the court shall ascertain the proportion to which each owner thereof is entitled, and order the property to be sold, and execution shall be issued to the sheriff or any constable of the county where the property may be, describing such property and commanding such officer to sell the same as in other cases of execution, and pay over the proceeds of sale to the parties entitled thereto, in the proportion ascertained by the judgment of the court.
Source: Art. 6105, unchanged.
Oct. 29, 1940, eff. Sept. 1, 1941.
(No. 127) Question: In an action to partition real property where the realty will not admit of a fair and equitable partition in kind and where the court, with the consent of both parties, appoints a receiver to sell the real property and where in the same action it is sought to partition personal property being furniture and fixtures used in the business building which is a part of the realty, is Rule 775 mandatory in requiring the "court to sell the personal property under execution and not through the receiver appointed to sell the real property, or is Rule 775 merely directory? In other words, does the district court have jurisdiction in the absence of objection by the parties at interest to direct the sale of personal property by the receiver appointed to sell the real property involved in the same litigation?
Answer: In our opinion the district court does have jurisdiction to direct the sale of the personal property by the receiver under the above circumstances.
The statutes giving the district court power to appoint receivers (Arts. 2293-2319) were not repealed by the Rules of Civil Procedure; and the rules themselves (Rules 695 and 695a) contemplate that receivers will be appointed to administer personal property as well as real estate. We feel that it is within the jurisdictional powers of the district court to order a sale of personal property through receivership.
Rule 775 does not purport to restrict the jurisdiction of the court. It provides a proper method of conducting the sale of personal property in partition proceedings, but it does not state that such method is exclusive of all others. Rule 776 expressly states that "no provision of the statutes or rules relating to partition shall ... preclude partition in any other manner authorized by the rules of equity ... " See Thomas v. Southwestern Settlement & Dev. Co., 132 Tex. 413, 123 S.W.2d 290 (1939) by Commission of Appeals. We feel that an order directing the sale to be made by the receiver would be valid and within the jurisdictional powers of the court under the circumstances stated in the question.
7 Tex. B.J. 281 (1944) reprinted in 8 Tex. B.J. 48 (1945).