112 S.W. 801 | Tex. App. | 1908
By his petition the appellee sought a judgment against R. Conley on certain notes executed to him by Conley, with a foreclosure of two chattel mortgages given upon certain cattle to secure the notes. A recovery in the petition was sought against the appellant Reed for conversion of some of the cattle, on the allegation that he purchased some of the cattle having notice of appellee's lien. The petition further alleged that on or about July 27, 1905, Conley delivered to the appellee the possession of all of said cattle, to be held by appellee under and by virtue of his chattel mortgage, and which actual possession he has held, open and notorious, in the county where the cattle were situated. All the other appellants were made parties to the suit, and it was alleged in the petition that they were subsequent mortgagees, having at the time constructive notice of appellee's lien on the cattle. The appellant Reed answered by a general denial, and specially, that the purchase by him of some of the cattle for the sum of $504 was without notice, actual or constructive, of appellee's liens; and further answered that the said sum of $504 was applied to part payment of a lien of the First National Bank of Lubbock on said cattle to secure the repayment to it of money advanced by the said bank to Conley for the purchase of these very cattle. The appellants, the City National Bank of Colorado, Texas, the First National Bank of Portales, *287 New Mexico, the First National Bank of Lubbock, and the Midland National Bank, of Midland, Texas, each plead respectively existing liens upon said cattle taken at the time, without notice, either actual or constructive, of the alleged liens held by the appellee, and each prayed that its said lien be declared superior to those of appellee.
A trial was had before the court without a jury, and judgment was rendered by the court in favor of the appellee, decreeing a foreclosure in his favor of his said liens upon said cattle, and adjudging the liens of all the other appellant banks to be junior and inferior liens by reason of constructive notice of the liens of appellee, and adjudging a personal judgment for $315 in favor of the appellee against the appellant Harry M. Reed. All of the defendants in the suit, except R. Conley, have appealed to this court from the judgment so rendered. The trial court filed his findings of fact and conclusions of law, and the same are in the record with no complaint by appellants as to the same. There is no statement of facts in the record except these findings. The findings of the court are adopted by this court.
The first assignment of error assails the first paragraph of the court's conclusions of law. Looking to the court's findings of fact, as involved in the first assignment of error, it was established in the case that, on October 21, 1902, Conley executed to the appellee a chattel mortgage on certain cattle, and that on August 21, 1902, Conley executed to Robinson a chattel mortgage on certain cattle (which mortgage the appellee acquired by transfer), and that both of these chattel mortgages were filed with and registered by the county clerk of Martin County, Texas, "in the chattel mortgage register for Terry County," kept by him in Martin County, on October 22, 1902, and August 21, 1902, respectively; that at the time of the execution and registration of the chattel mortgages Terry County was an unorganized county attached to Martin County for judicial purposes; that the mortgagor Conley resided, and the mortgaged cattle were situate, in Terry County; that appellant Reed was a subsequent purchaser of some of the mortgaged cattle from Conley, and that all the other appellants were subsequent mortgagees of the said cattle mortgaged to the appellee; that Terry County became legally organized as a county government under the statute providing for such organization on June 28, 1904; that this suit was instituted August 4, 1905. The court entered the conclusion of law that the depositing and registering of appellee's chattel mortgages in Martin County was constructive notice to all the appellants, and that their interest in the cattle was subordinate to and subject to the appellee's prior mortgage claim. It is contended by the appellants, in effect, that the court erred in this conclusion of law, because the unorganized county of Terry was attached to Martin County by legislative acts for the definite and specified purpose of "judicial purposes" only, and the mortgaged cattle were situate in, and the mortgagor resided in, Terry County, and that therefore the registration of the appellee's mortgages on the personal property in Martin County, being neither permitted nor required by law, would not constitute legal or constructive notice to the appellants of the appellee's lien on the cattle.
It is provided by article 3328, Revised Statutes, that all chattel mortgages or liens upon personal property which shall not be accompanied by *288
an immediate delivery, and be followed by actual and continued change of possession of the property mortgaged or pledged by such instruments, shall be absolutely void as against the creditors of the mortgagor or person making the same, and as against subsequent purchasers and mortgagees or lienholders in good faith, unless such instruments, or a true copy thereof, shall be forthwith deposited with and filed in the office of the county clerk of the county where the property shall then be situated; or if the mortgagor, or person taking the same, be a resident of this State, then of the county of which he shall at the time be a resident. The cases have so applied this statute that, in the absence of actual transfer of possession, a chattel mortgage must be registered as required by law in order to be valid against subsequent purchasers, creditors and lienholders in good faith. Brothers v. Mundell, M. Co.,
The appellants' second assignment of error is to the effect that the court erred in ordering a decree of foreclosure of the appellee's mortgage *291
liens in priority to the appellants' liens and claims. Looking further to the court's findings it was established that on July 28, 1905, R. Conley, the mortgagor, at the ranch of the appellee in Terry and Yoakum Counties, delivered actual possession of all the cattle in controversy to appellee, to be by him held under and by virtue of and for the purpose of his chattel mortgage, and that appellee, for the purpose of being a mortgagee in possession, took actual possession of the cattle at once, and placed same in a separate and distinct pasture from that in which they were being pastured by the mortgagor, and has continuously ever since held the actual possession of the cattle under and by virtue of his mortgage. It was further found by the trial court that on the 26th day of May, 1905, the appellant Reed purchased from Conley twenty-one head of the said cattle, of the value of $15 per head, without actual notice of any mortgage of the appellee upon the same. It was further found that on the 20th day of December, 1904, and on the 5th day of January, 1905, after the organization of Terry County on June 28, 1904, the First National Bank of Lubbock filed and deposited with the county clerk of Terry County its several chattel mortgages executed by Conley on the said cattle, and that each chattel mortgage was on the several days of deposit duly registered; that the chattel mortgages executed by Conley to the several appellants in this case were filed in Terry County on September 6, 1905. From these facts, as found by the trial court, we are of the opinion that the appellants' contention should in part be sustained. The appellee in his petition plead in the alternative that, if it should be held that the registration of his mortgages was not legal, that he be allowed to recover in priority in this case to the other appellants, because he was a mortgagee in actual possession of the cattle, setting out the facts in the petition of delivery by the mortgagor and his actual possession and change of possession of the cattle under the mortgage. The findings of the trial court in this respect are not challenged. The trial being before the court below without a jury, and the court having found as to the facts, and his conclusion of law as to the validity of the registration being erroneous, it becomes the duty of this court to render such judgment as the trial court should have rendered under the law. These findings by the trial court show, and are sufficient to show, appellee to have been in actual and continued change of possession of the mortgaged cattle, holding same under and by virtue of his chattel mortgages from the date of July 28, 1905, and that his rights as a mortgagee in possession from that date became fixed, and were sufficient notice under the law. Jones on Chattel Mortgages, section 178; Lucketts v. Townsend,
Reversed and rendered in part and affirmed in part.