199 S.W. 843 | Tex. App. | 1917
The court sustained a demurrer to said petition, and from judgment thereon appellant has perfected this appeal
"Every mortgage, deed of trust, or other form of lien attempted to be given by the owner of any stock of goods, wares or merchandise daily exposed to sale, in parcels, in the regular course of the business of such merchandise, and contemplating a continuance of possession of said goods, and control of said business, by sale of said goods by said owner shall be deemed fraudulent and void." Acts 16th Leg. c. 53.
This section was omitted from title 8, Assignment for Creditors, in the Revised Statutes of 1895, but was carried forward as article 2548, title 50, relating to Frauds and Fraudulent Conveyances, and is now article 3970 of the Revised Statutes of 1911. Article 5654 of the Revised Statutes of 1911, passed in 1885, reads as follows:
"All reservation of the title to or property in chattels, as security for the purchase money thereof, shall be held to be chattel mortgages, and shall, when possession is delivered to the vendee, be void as to creditors and bona fide purchasers, unless such reservations be in writing and registered as required [by law] of chattel mortgages."
There is no such thing, either at common law or by our statute, as a vendor's lien to secure the purchase price of a chattel after it has been delivered to the purchaser. Lewis v. Steiner,
In Harling v. Creecch,
"The language, `all reservations of title to or property in chattels as a security for the purchase money thereof, shall be held to be chattel mortgages,' is plain, and admits of no other construction. Whenever the transaction assumes that shape, the law gives it the character of a chattel mortgage."
In Crews v. Harlan,
"The effect of the statute is to change the nature of the contract from that of a sale, to take effect so as to pass the title only upon the payment of the purchase price, to a mortgage to secure the debt."
Such being the law of this state, appellee's chattel mortgage having been filed for record prior to the filing of the petition for bankruptcy, appellant is not entitled to have appellee's mortgage lien canceled without first tendering appellee the amount due thereon, unless said mortgage is void by virtue of article 3970, supra.
Section 47, subd. "a," cl. 2, of the Bankruptcy Act provides that trustees in bankruptcy "as to all property in the custody, or coming into the custody of the bankrupt court, shall be decreed, vested with all the rights, remedies, and powers of a creditor holding a lien by legal or equitable proceedings thereon." U.S. Comp. St. 1916, § 9631. So, if appellee's mortgage was void as to a creditor who had fixed a lien on the property in controversy the day the petition in bankruptcy was filed, it is void as to appellant.
As an original proposition, the writer would hold that article 3970 applies to the instant case, unless it should be held not to apply for the reason that the specific articles mentioned in the contract here under consideration are not "any stock of goods, wares, or merchandise daily exposed to sale in parcels," etc., within the meaning of said article. In view of the disposition which we make of this case, it is unnecessary for us to decide this point.
But, in Bowen v. Lansing Wagon Works,
Appellant insists that we should not be controlled in the instant case by the decision in the Bowen Case, for the reason in that case those who had accepted under the assignment were not creditors who had fixed their liens by any judicial process. The court might have rested its decision in that case upon that point only, but it did not do so. It decided the other point also.
We also overrule appellant's assignment to the effect that the demurrer to his petition should have been overruled for the reason that section 70, subd. "a," of the Bankruptcy Act provides that the trustee shall be vested with the title of the bankrupt, as of the date he was adjudged a bankrupt, to all property which prior to the filing of the petition he could have transferred.
It is true that appellee could have transferred the property in question at any time prior to his becoming a bankrupt, and the purchaser would have acquired a perfect title thereto. But he had not done so. The title which he had was the legal title subject to the mortgage which he had given. This title and none other passed to the assignee.
For the reasons stated, we affirm the judgment of the trial court herein
Affirmed.