114 F. 112 | 5th Cir. | 1902
On November 9, 1895, one E. C. Smith executed a chattel mortgage to W. S. Johnson, on 15 mules and other personal property, to secure said Johnson for his indorsement of the note of said Smith -to the First National Bank of Atlanta, Tex., for
The appellant contends in his first assignment of error that a valid lien in his favor having been fixed on the mules in Cass ..county, Tex., the lien could not be devested or destroyed by Smith’s removing the mules into Louisiana. As against Smith, this proposition is probably correct; but as against Bentley & Co., who acquired the mules in Louisiana in good faith and without notice, and under the circumstances shown by the evidence, it is not necessarily correct. Chattel mortgages are unknown to the laws of Louisiana, and cannot be enforced in that state. Delop v. Windsor, 26 La. Ann. 185. It would seem, therefore, that when the mules in controversy were moved into Louisiana, with or without the consent of the appellant, they became subject to the laws of that state, and the lien of the Texas mortgage lapsed, or at least remained in abeyance, as long as the mules remained in Louisiana. It follows that the mules in Louisiana were subjected to seizure and sale under execution against Smith, the owner, the same as if no mortgage had ever been granted; and, if full faith and credit are to be given to the judicial proceedings in Louisiana (as to which see Green v. Van Buskirk, 5 Wall. 307, 18 L. Ed. 599; Id., 7 Wall. 139, 19 L. Ed. 109), the purchaser in good faith at such execution sale took title to the property. But it is not necessary in this case to go to this extent to negative appellant’s right to recover. The mules in question were removed to a parish in Louisiana adjoining Cass county, Tex., where the appellant and his debtor both lived, and were allowed to remain in Louisiana for nearly three years without any assertion or notice whatever of appellant’s mortgage rights; and this, taken in connection with the fact that Smith’s debt to appellant was long past due, was such laches as,- in our judgment, precludes the appellant from now asserting his title on the unlawful and surreptitious return of the mules by Smith to Cass county, Tex. The Texas statute under which appellant claims his lien reads as follows:
“Every deed, mortgage, or other writing respecting the title of personal property hereafter executed, which by law ought to be recorded, shall be recorded in the clerk’s office of the county court of that county in which the property shall remain; and if afterwards the person claiming title under such deed, mortgage or other writing shall permit any person in whose possession such property may be, to remove the same or any part thereof out of the county in which the same shall be recorded, and shall not, within four months after such removal, cause the same to be recorded in the 'county to which such property shall be removed, such deed, mortgage, or other writing, for so long as It shall not be recorded in such last mentioned county, and for so much of the property ‘ aforesaid as shall have been removed, shall be void as to all creditors and purchasers thereof for valuable consideration without notice.” 2 Sayles’ Ann. Civ. St. art 4G51.
If the mules had been removed to an adjoining county in Texas, and the appellant had remained quiet for four months, he would undoubtedly, under the above statute, have lost his lien, as against purchasers
The third and fourth assignments of error, which assert the proposition that Bentley & Co. had only a lien on the mules in controversy to secure a debt, which lien was void under the law of Louisiana, and the fifth and sixth assignments of error, which deny title of Bentley & Co. to two of the mules in controversy, are none of them well taken, because they are not supported by the facts as shown by the evidence, and hereinbefore recited.
The seventh assignment of error, to the effect that the court erred in granting to W. J. Bentley & Co. affirmative relief to the extent of awarding them a judgment for $70 damages, is well taken, because there are neither pleadings nor evidence to warrant such judgment.
This disposes of all errors assigned, and our conclusion on the whole case is that the decree appealed from should be amended by striking out the judgment for $70 damages, and, as so amended, the same should be affirmed, at costs of the appellees, and it is so ordered.