282 S.W. 832 | Tex. App. | 1926
"Any distinct act or dominion wrongfully exerted over one's property in denial of his right, or inconsistent with it, is a conversion."
Our courts have approved this definition. First Nat. Bank v. Brown,
The title and right of possession of the automobile in question were both in R. A. Johnson. Appellant had a lien on said car to secure its debt, but had neither title nor right of possession. Johnson had the right to sell said car subject to appellant's mortgage, and Russell De Ford had the right to attach said car, to foreclose his attachment and sell same, or to sell same under execution, and in such event, appellant's chattel mortgage being duly filed, appellant could suffer no injury and could have no ground of complaint. Article 3744, Vernon's Sayles' Civil Statutes; Wilkerson v. Stasny Holub (Tex.Civ.App.)
Appellant also contends that it was about to sue and seize said car when appellee De Ford attached same and that it was prevented from so doing by said attachment, but there is no merit in this contention. Said attachment could not have prevented appellant from suing and seizing said car by either attachment or sequestration, and appellant had the right by proper process, not only to seize said car, but also by proper action to have its lien established as a prior lien to appellee's attachment lien, and, if appellant feared the storage of said car would cause it to deteriorate in value, it had the right to have said car sold and the proceeds paid into the registry of the court, etc.
The only thing in the case, as we see it, that tends to prove conversion for any amount on the part of anybody, is the evidence that certain parts were taken off the car while it was stored in the garage, which reduced the value of the car some $50, but, as the record discloses that the constable levying the writ of attachment placed said car in said garage of his own volition and not at the instance or request of De Ford, if parts of said car were removed while said car was in the possession of the constable, or his agent, in said garage, then said constable and his bondsmen would probably be liable for the resulting damage to said car, but De Ford, the writ not being wrongfully sued out, would not be liable for such damage to anybody, and said constable and his bondsmen are not parties to this suit. McFaddin v. Sims,
We have not passed on the other question raised by appellees, challenging the validity of the sale of said secondhand car to R. A. Johnson on the ground no license fee receipt was transferred to him. We did not deem it necessary to pass on said question, but have, for the purposes of this opinion, treated said sale as valid.
The trial court, we think, was correct in instructing a verdict for appellees, and the judgment of the trial court is affirmed. *834