1. On December 7, 1891, E. Bauman executed a chattel mortgage conveying his stocks of goods, situated in Dallas and Fort Worth, to J. B. Simpson and E. M. Reardon as trustees, *492 to secure certain of his creditors, whom he divided into two classes, preferring class A to class B.
2. On December 8,1891, the B. C. Evаns Company, a creditor embraced in said mortgage in class B, sued out an attachment against E. Bauman, placed the same in the hands of the sheriff, and he at once levied the same upon a portion of the stock at Fort Worth embraced in the mortgage. On the same day, with full knowledge of the mortgage, having examined it, appellant the Farmers and Mechanics National Bank of Fort Worth, whose-debt was $25,000, a creditor, and which debt was embraced in class A in said mortgage, also sued out an attachment against said Bauman, placеd said writ and an indemnity bond in the hands of the sheriff who had made-the levy for the B. C. Evans Company, and was at the time taking an inventory of the goods.
3. The evidence was conflicting as to the instructions given the sheriff by appellant’s attorney at the time the writ was placed in his hands, and the issue was made whether the sheriff actually made a levy upon the stock of goods under appellant’s writ. The evidence was sufficient before the-trial court to warrant the conclusion that appellant’s attorney directed the writ to be levied, and that the sheriff did levy the writ upon said stock of goods; and we feel constrained in support of the judgment to so conclude.
4. Appellees, who were creditors embraced in class B, on learning of the attachment proceeding, regarded it as an election by the Farmers and Mechаnics National Bank to reject the terms of the mortgage, and believing that if that debt was left out, there would be sufficient property for them to realize something on their debts, they accepted the mortgage. The property conveyed was not sufficient to pay all the debts secured by the mortgage, but was sufficient to pay a per cent upon appellees’ debts, if appellant be left out.
5. On December 12, 1891, appellant abandoned its attachment, directed the sheriff to return the writ not executed, and for the first time manifestеd its intention of acceptance of the mortgage by notifying the trustees that it accepted the mortgage.
6. On December 18, 1891, E. S. Jaffray & Co. and others, as plaintiffs, filed their petition in the District Court of Dallas County, Texas, for the removal of the trustees, J. B. Simpson and E. M. Reardon, and for the-appоintment of a.receiver to take charge and administer the property conveyed by the deed of trust. The defendants in the suit were E. Bauman, who executed the deed of trust, Simpson and Reardon, the trusteés, and all the creditors named as constituting class A. Aside-from the allegаtions made by plaintiffs showing their interest in the deed of trust as the owners of the said debts included in class B, as therein set forth, said plaintiffs alleged that they had accepted under the said deed of trust, and set forth various grounds for the removal of the trustees and the appointment of a receiver. Plaintiffs alleged, that since the. *493 •execution of the deed of trust, B. C. Evans Company, a creditor of the said Bauman, secured by said deed of trust in the payment of a debt included in class B, and the Farmers and Mechanics National Bank, appellant, which was secured in the payment of a debt included in class A, had refused to accept under said deed of trust, and had repudiated the same, and had instituted suit against the said Bauman, each for the amount of the debt due it, and had secured the issuance and levy of writs of attachment against the said Bauman; that said writs of attachment had been levied upon a portion of the property conveyed by said deed of trust, and that the said B. C. Evans Company and the Farmers and Mechanics National Bank were causing the said property to be held adversely to the said trustees.
7. The Farmers and Mechanics National Bank filed an answer in said •cause on December 21, 1891. Said bank adopted the demurrer, pleas, and answer of the trustees, J. S. Simpson and E. M. Reardon, its co-defendants, and denied that it had taken possession of any рart of the property conveyed in the said deed of trust, or in any way interfered with or molested or hindered the said trustees from carrying out and discharging the trust imposed upon them, and alleged that’it had notified the said trustees of its intention to accept the deed of trust and аll benefits accruing under it.
8. On December 23, 1891, the said trustees were removed, and B. Blankenship was appointed receiver, and qualified as required by the •orders of the court.
9. On January 1, 1892, said receiver reported sales of property and receipt of proceeds amounting to about $165,000. The court confirmed the sale, and afterward ordered the receiver to pay 90 per cent of the •debt due each creditor in class A, excepting only the debt due the Farmers and Mechanics National Bank, appellant.
10. On January 11, 1892, аppellant filed in said cause its application to the court for an order directing said receiver to pay its proportionate part, or 90 per cent, of the debt due it.
On January 8, 1892, appellant filed its first amended application for the payment оf its proportionate part of the fund secured to be paid to it by the said deed of trust. Appellant alleged, that the said Bauman was indebted to it in the sum of $25,000, setting forth the particulars of such indebtedness; that the payment of said indebtedness was secured by the terms and provisiоns of said deed of trust executed by the said Bauman, as herein before stated; that appellant was and ever had been ready and willing to accept under the terms of the said deed of trust; that under the orders of the court, 90 per cent of all debts included in class A and sеcured by said deed of trust had been paid, except appellant’s debt, etc. No pleadings in opposition to appellant’s application and amended application were filed in the court below.
*494 11. On January 30, 1892, the court overruled the said aрplication, holding that the same was not well founded in fact and law, and found that appellant had waived all right to any portion of the said trust fund, and had elected not to accept and take under the said deed of trust. From, this judgment this appeal is taken.
Opinion. — It is complained by assignments of error, that the trial court-erred in holding that the issuing and levying of the writ of attachment upon the property conveyed by the mortgage was an election not to take under the mortgage. In support of this assignment, the legal proposition is asserted, that the issuаnce and levy of a writ of attachment by the mortgagee upon personal property mortgaged to him to secure his debt is not a waiver of his mortgage lien, and he is not estopped to foreclose or claim under his mortgage. Quite a. number of pertinent and respectable authorities are cited in support of the legal proposition announced-Among them is the case of Howard v. Parks, 1 Texas Civil Appeals, 603. These authorities deal with the question only of what constitutes a waiver of a fixed, subsisting contract lien given for the security of a debt, or an estoppel to its enforcement. Under our view of this case, that question does not arise, and it is unnecessary for us to give our views upon it.
Where a mortgage is executed upon property to secure the payment of a debt, the liеn therein provided for does not become fixed, so as to be a subject of waiver, until the mortgagee has accepted the mortgage and thereby made it a subsisting contract between the debtor and creditor. 1 Cobbey on Chat. Mort., sec. 413.
Such mortgage is a contract between the debtor and creditor, and it can not possess the legal elements of a contract until the creditor assents to its terms so as to be bound by them.
In Wallis v. Taylor,
In Alliance Milling Company v. Eaton, Guinan
&
Co., decided by our
*495
Supreme Court February 8, 1894 [
This opinion discusses the quеstion fully, reviews the decisions, and authoritatively settles the proposition, that acceptance by the trustee in a mortgage will not meet the necessity of and answer for the assent of the beneficiaries. In the light of these authorities, we must hold that at the time appellant’s attachment was levied, it not having accepted the mortgage, no lien existed in its favor upon the property by virtue of the mortgage.
This brings us to the question, whether the levy of the attachment upon the property embraced in the mortgage should be held a final, irrevocable election by the bank to refuse its assent to the mortgage. “ The election, if made with knowledge of the facts, is in itself binding. It can not be withdrawn without due consent, although it may not have been acted upon by another by any change of position.” Bige. on Estop., 5 ed., 673. “ One entitled to a benefit under an instrument, whether it be a will or any contract, if he claims the benefit of such instrument, he must abandon every right the assertion whereof would defeat even partially the provisions of the instrument. A party can not occupy inconsistent, positions, but will be confined to his election.” Herm. on Estop. and Res. Jud., ed. 1886, 1177. “ In cases of an election, the rule is, if a person determines his election it shall be forever determined.” Turnpike Co. v. Turnpike Co.,
It seems to be the settled rule, that where one has the election to accept or reject the terms of a contract, if he once makes an election it is binding upon him, and irrevocable, except by the consent of рarties interested.
By the levy of the writ of attachment the goods which were conveyed to the trustees were seized, the trustees deprived of possession and control, for the purpose of having them sold under judicial process, and applied solely to aрpellant’s debt. Had the attachment proceeding been *496 prosecuted to a successful termination, it would have defeated the intention of the mortgagor as expressed in the instrument, to the' extent of the property taken under attachment. It is difficult to conсeive of a more unequivocal way to express one’s dissent from such a conveyance than that of suing upon the debt, taking out the harsh writ of attachment, and under it seizing the property and taking it from the hands in which it had been placed, and undertaking to have it disposed оf by a power and in a manner different from that provided in the mortgage. Had the bank simply declared in words that it would not accept under the mortgage, such an expression of election would have left the trustees in an attitude where they might have proceeded to execute the trust as to the other beneficiaries. But the expression of election contained in the attachment proceeding went further, and declared that the trustees should not execute the trust at all, so far as the property attached was concerned. In this instance “ actions speak louder than words.”
In our opinion, the bank elected to reject the mortgage when it sued out and levied the attachment upon the mortgaged property, and it could not relieve itself of the legal effect of such election by its subsequent abandonment of the attachment proceeding and offer to accept under the mortgage. Lockhart v.Wyatt,
The judgment of the court below is affirmed.
Affirmed.