69 Tex. 115 | Tex. | 1887
This action was brought by the appellees to recover from J. T. Boykin a debt secured by chattel mortgage, which they sought to foreclose. They alleged that a part of the mortgaged property was in the possession of P. T. Norwood and another part in the possession of G. T. Todd. Desiring to sequester the property, they made the necessary affió davit, which showed that the mortgaged property, consisting of five hundred pine logs, was in the possession of the defendants Norwood and Todd, the former having three hundred, and the-latter two hundred.
The logs were described as in Marion county, in the possession of the darned defendants, each marked cross within a circle on the-end of the log, averaging from- fourteen to thirty feet in length and from one foot to thirty inches in diameter, and containing^
The statute provides that “the property to be sequestrated shall be described with such certainty that it may be identified and distinguished from property of a like kind, giving the value of each article of property and the county in which it is situated.” (Rev. Stats., art. 4490.) We are of the opinion that the description given of the logs was sufficiently specific. The petition, which stated the facts for sequestration, was sworn to, and showed that the logs in controversy were cut off of certain tracts of land by Boykin, and that they had to be floated to the place where, under the mortgage, they were to be put, and there is no pretense that there were any other logs answering the description given in the. petition. One of the methods which the law has required for the identification of logs to be floated or rafted, is a brand. (Act April 7, 1879.) The logs in question were described by a brand as well as otherwise, and whether the brand had, at the time, been so recorded as to make it, under the statute evidence of ownership, it was, under the facts of this case, •sufficient to identify the logs, the other matters of description required by the statute having been fully given. It would be very difficult more accurately to describe such property.
It might as well be asked, in case of the application for a writ of sequestration to seize a stock of cattle bearing one brand, that a particular description of each animal should be given in addition to the brand. The law does not require the impracticable.
It is further urged that the writ of sequestration should have been quashed because a separate sequestration bond was not executed to each defendant. There was no such objehioa made in the court below. The objection was “for want- of a sufficient affidavit and bond.” This was an objection to the form and manner of execution of the bond, and did not suggest that more than one bond should have been given. Had the objeet'o i now urged been made in the court below, we are of the opinion that
The mortgage was upon one million and a half feet of pine sawlogs, a part of which were in Clinton lake at the time the mortgage was executed, and the remainder were to be cut by Boykin and placed there within time specified, from lands which were designated, the mortgage to cover all timber cut therefrom until the quantity was reached. It is urged that the mortgage-was void, as to third persons, and the inferences are that this, was claimed on the ground that the property was not sufficiently described, and on the further ground that the mortgage of standing trees was not good as a chattel mortgage. The description of the property was sufficient, and it is very generally held that a mortgage of trees to be cut and removed from the freehold, or a mortgage of growing timber by one who has purchased the same, to be cut and removed from the freehold, is a mortgage of personal property, and will avail the mortgagee if it be recorded as a chattel mortgage. (Jones on Chattel Mortgages, and eases cited in notes 2 and 3.)
Harwood and Todd each claimed and had possession of a part of the mortgaged property, and there was no error in overruling an exception to the petition which claimed that there was a misjoinder of parties defendant. If Horwood and Todd had severally executed replevy bonds, which only entitled each to resume or-retain possession of the logs claimed by each, then a joint judg ment should not have been entered against them and sureties, but they executed a joint” bond whereby they both became entitled to the possession of the logs, and they thus subjected themseles and the sureties on their bond to a liability to just such a judgment as was rendered against them. Their liability arose upon that bond, and the court correctly held them bound, as, by it, they bound themselves.
A copy of the mortgage executed to appellees by Boykin was filed in the office of the county clerk instead of the original, and its introduction in evidence was objected to on the ground that it did not appear from the copy that the original was duly acknowledged. The statute regulating the registration of chattel
The third section of the act to which we have referred provides that " a copy of any such original instrument, or of any copy thereof so filed as aforesaid, certified to by the clerk in whose office the same shall have been filed, shall be received in evidence of the fact that such instrument or copy was received and filed according to the indorsement of the clerk thereon, but of no other fact” If a copy is filed with the clerk, and a question is raised as to whether it is a true copy, or as to whether the original was acknowledged, the original would seem to be the best evidence of those facts, and should be admitted to prove them; for the statute does not make the fact of filing evidence of any fact other than that the “instrument or copy was received and filed according to the indorsement of the clerk thereon.”
It is not claimed that the paper filed was not a true copy of the original mortgage, nor that the latter was not properly acknowledged before the copy was filed, and there was no error in admitting both the original and copy. If the original should be lost or destroyed and a person claiming under it unable to show that the paper filed was a true copy, or that the original was acknowledged, a question might then arise as to whether any presumption as to those matters might arise from the fact that the clerk had received and filed a paper purporting to be a true copy of a chattel mortgage; but no such question arises in this case.
Boykin had executed another chattel mortgage to the appellees, and the debt which it had been made to secure having been paid, the attorney for appellees directed the clerk, as the statute permits, to make an entry showing it satisfied; but the clerk,
There was no error in this. The entry upon its face showed that it was imperfect, and there can be no pretense, under the evidence, that the appellants were misled by it and thus induced to buy the mortgaged property; on the contrary, both Norwood and Todd were notified of tfie existence of the mortgage at the time they bought.
The other questions presented are questions of fact, all of which were decided against the appellants in the court below upon evidence amply sustaining the findings, and they need not be further considered.
There is no error in the judgment, and it will be affirmed.
Affirmed,
Opinion delivered October 28, 1887.