Boydston v. Morris

71 Tex. 697 | Tex. | 1888

Gaines, Associate Justice.

Appellee brought this suit to recover of appellant the value of certain corn appropriated by the latter, upon which appellee claimed a lien. One Steiger executed to appellant a chattel mortgage upon his growing crop, which was duly registered. After the registration appellant bought of Steiger eighty-four bushels of corn, which he mingled with his own, and subsequently fed to cattle. During the progress of the trial the plaintiff offered in evidence a copy of the mortgage, which was admitted by the court over the objection of the defendant. The objection was upon the ground, among others, that the original instrument had not been accounted for. The admission of the copy was error. In the absence of proof of the loss or destruction of the original, secondary evidence of its contents was not admissible. The statute provides that a copy of a chattel mortgage duly filed for registration, certified to by the clerk in whose office it has been filed, “shall be received in evidence of the fact that such instrument * * was received and filed according to the indorsements of the clerk thereon, but of no other fact.” (2 Sayles’Rev. Stat., art. 3190b, sec. 3.) In order to establish the mortgage, its execution should have been proved, and the original produced or its absence accounted by showing its loss or destruction. For this error of the court in admitting the copy in evidence, the judgment must be reversed.

There are other assignments of error, but none of them are well taken. We will dispose of them in a brief manner. First, we are of the opinion that the plaintiff did not lose his lien by proceeding to judgment in the justice’s court on his debt, and to foreclose his mortgage against the mortgagor, without making appellee a party. The judgment did not affect appellee’s rights, but it left the lien intact. The judgment was evidence that Steiger still owed the debt. Second: It was not necessary to make Steiger a party to the present suit. This was not an action to foreclose the mortgage. Appellee had disposed of property upon which appellant had a lien. The lien could not be foreclosed upon it, because it was no longer in existence. By the wrong of appellant, appellee was deprived of the right of having the corn sold for the payment of his debt, and is entitled to compensation. The amount of his unsatisfied debt being greater than the value of the corn, the latter is the measure of his damages. Upon this theory the case was tried below, and if the original mortgage had been proved and introduced in evidence, there would have been no ground for a reversal.

The judgment is reversed and the cause remanded.

Reversed and, remanded.

Opinion delivered November 9, 1888.