Lead Opinion
This is thе second appeal of this case [See former opinion Liquid Carbonic Co. v. Head (Tex. Civ. App.)
Appellant’s mortgage provided for partial payments maturing July 5, 1929, and monthly thereafter. The suit was brought by Mrs. Head against the tenаnt and others, including appellant, to foreclose her landlord’s lien, and resulted in judgment by default against appellant on November 10, 1930. The property was sold under execution and bought in by Mrs. Head for $50 on December 19, 1930. On January 21, 1931, appellant sued out a writ of error, resulting in reversal of the trial court’s judgment. Liquid Carbonic Co. v. Head (Tex. Civ. App.)
“That the possession taken by the plaintiff, Mrs. Mary E. Head, as set forth hereinabove, was an actual and visible appropriation of the property commenced and continued under a claim of right inconsistent with аnd hostile to the claims of all others, that such possession and claims since that date have been continuous; that no other suit or suits have ever been instituted against her to recover the possession or to foreclose any lien or liens on said property or any part thereоf by defendant Liquid Carbonic Company, except as known to the court in this case.
“That defendant, Liquid Carbonic Company, received notice on December 19,1930, that plaintiff, Mrs. Mary E. Head, was claiming the property then in her possession on general principals, and that she did not recognizе the validity of said defendant’s mortgage, but that defendant Liquid Carbonic Company had never received notice of any particular claim on the part of plaintiff, Mrs. Mary E. Head, by reason of which she could or might have then had any valid right to said property or any part thereof unincumbered by thе chattel mortgage of Liquid Carbonic Company, except as pleaded in this case and shown by the orders, judgments, writs, and returns herein, and those other papers which may be hereto attached and incorporated in this agreement.
“It is further agreed that on November 10, 1930, W. H Logan turned over said property to the plaintiff, Mrs. Mary E. Head, in payment of the rent then due Mrs. Head and in satisfaction of her landlord’s and chattel mortgage liens, said turning over and transferring taking place by parole and consummated by the order of sale and sale thereunder as hereinabove set out and оf which transfer the Liquid Carbonic Company has not heretofore been advised of, except as contained in the pleadings.”
A¥e are unable to conclude from the above statement‘that Mrs. Head acquired any title to the property by limitation. When she filed the suit against appellаnt, asserting the superiority of her landlord’s lien to any claim which it might have, she put in issue the validity of its claim, and the judgment which she recovered was, until set aside, a complete bar to any action it might bring for the property. When that judgment was set aside by this court, it destroyed the title which Mrs. Head acquired to thе property under the execution sale, and left the matter in the same status it was prior to the rendition of that judgment. See Cleveland v. Tufts,
In so far as' concerns appellant’s cross-action and its right to affirmative relief, it may be conceded that limitation was not tolled by the filing of Mrs. Head’s suit. This cross-action, however, was predicated upon an instrument in writing, as to which the four-year statute applied (Rev. St. 1925, art. 5527), and was filed well within the limitation period. The lien followed the debt, and was not barred so long as the debt was not barred. The only theory upon which limitation could be asserted would be аs regards
There is another equally valid ground which defeats appellee’s recovery. The agreed statement shows that, in so far as her possession was obtained directly from the tenant, it was in parol and was “consummated by the order of sale and sale thereunder,” and that the only notice appellant had of her claim was what the record showed. One who purchases mortgaged chattels from the mortgаgor or under execution against ¡him only acquires the equity of redemption; that is, the legal title subject to the mortgage debt. Brooks v. Lewis,
In so far as title to the property in issue is decreed in Mrs. Head as against appellant, the trial court’s judgment is reversed, and the cause is remanded, with instructions to the trial court to enter judgment of foreclosure upon the mortgaged property in favor of appellant for the amount of its judgment, such foreclosure to be superior to the title or.claim of Mrs. Head or any other party to the suit. In other respects, the trial court’s judgment is undisturbed.
Reversed and remanded in part and in part affirmed.
Rehearing
On Motion for Rehearing by Appellee Mrs. Head.
The only point in the motion for rehearing which we find it necessary to discuss is one raised for the first time in the motion. It is there asserted that we erred in holding appellant bound by the judgment in the first appeal, because “Liquid Carbonic Company,”' a foreign corporation, and not appellant “Liquid Carbonic Company of Tеxas,”-a Texas corporation, was sued therein; and that appellant did not appear and was not brought into the case until it was sent back to the trial court. There is nothing in the record in the-present appeal to support this contention, and it may be seriously questioned' whether, at- this late stage in the proceedings, we are authorized to consider it.
We have, however, made a careful examination of the record upon the former appeal, from which we make the following pertinent statement:
Appellee (plaintiff below) filed an original and a first and a second amended original petitions, in each -of which she sued “Liquid Carbonic Company, a foreign corporation.” The citation commanded summons of-“Liquid Carbonic Company,” and the sheriff’s return showed service upon “Liquid Carbonic Company, a' corporation, by delivering same tо Henry Guttman its manager in Dallas, Dallas County, Texas, in person.” The petition for writ of .error, supersedeas bond, and assignments of error were filed by “Liquid Carbonic Company of Texas.” Attached to these assignments were three exhibits: (1) Certified copy of the chattel mortgage which was in the form of a shipping order, addressed to “Liquid Carbonic Company of Texas, a corporation, Chicago, Ill.”; (2) copy of the charter of “The Liquid Carbonic Company of Texas,” certified by the Texas secretary of state; (3) affidavits showing that said corporation was the owner and holder of the chattel mortgage. Appellee made a motion to strike these exhibits from the record, which the trial court denied because the jurisdiction of the appellate court had already attached. This motion was renewed in this court and granted. See opinion on rehearing, Liquid Carbonic Cо. v. Head (Tex. Civ. App.)
The sixth assignment of error on the former appeal reads: “That the service had upon Liquid Carbonic Company was insufficient to support a default judgmеnt against it for the reason that the correct, corporate name of this defendant is the Liquid Carbonic Company of Texas, and it is a Texas Corporation, though referred to in plaintiff’s petition as a foreign corporation, as is established by the certified copy of said defendant’s charter as issued by the Secretary of State for the State of Texas, which is attached hereto and made a part hereof and is marked ‘Exhibit B’, and service of citation was had by delivering to ‘Liquid Carbonic Company, a corporation by delivering the same to Henry Gutt-man, its manager in Dallas County, Texas,’ a copy of the citation with a certified copy of plaintiff’s First Amended petition attached and service upon the manager of such a corporation is insufficient to support the judgment rendered herein against it.”
In opposition to this assignment appellee assеrted that “such service will support a default judgment, and if plaintiff in error was not a foreign corporation it could have shown that fact by plea in abatement, but not having plead misnomer, it cannot raise .this issue on appeal.” Among other supporting authorities is Duncan v. Smith Brothers Grain Co.,
If appellee’s present contention is correct, then this court had no jurisdiction upon the former appeal, because plaintiff in error there was not sued, judgment was. not rendered against it, and it was no pаrty to the proceeding. If that proposition were correct, then appellee’s proper course would have been to move to dismiss the appeal for want of jurisdiction on that ground. This was not done, although appellee did move to dismiss for want of jurisdiction on the ground that the sureties upon her distress warrant bond were not made parties to the supersedeas bond in error. This motion was overruled, as shown in the opinion on rehearing.
It thus appears that upon the former appeal the appellee resisted reversal of the trial court’s judgment and аsserted its validity against the plaintiff in error there and appellant here, on the express ground that the judgment there was binding upon the appellant, the Texas corporation. While we did not advert to the matter in our former opinion, we nevertheless passed upon it, holding by necessary imрlication that the judgment set aside was binding upon appellant, and that we had jurisdiction. We reversed the judgment in so far as appellant and appellee were concerned, upon the sole ground of want of service upon the amended petition upon which appellеe went to trial. See our former opinion.
In the face of this record- showing, appel-lee is now asserting limitation predicated upon the proposition that appellant was not a party to the proceeding and not bound by the judgment in the first appeal. This proposition сannot be maintained. The issue thus raised is concluded by our former judgment. Moreover, if there were any error in that decision, it was not only invited, but was at the insistence of appellee. Authority to support this view is unnecessary.
The other points in the motion were carefully considered in our original opinion in this appeal.
Motion is overruled.
Overruled.