*1
\ FARRIER
SANDERS
Tex.)
.293
(271 :.w.)
recover,
impair right
if
to
at time
nor
feet suit
party
could have sus-
was commenced such
2993.)
suit
(No.
FARRIER.
it.
tained
Texarkana.
Appeals
Texas.
(Court
of
Civil
of
Rehearing.
On Motion for
Rehearing Granted
30, 1924.
Dec.
—
1925.)
mortgages <@=>173(4)
Evidence
March
8. Chattel
mortgage
debt
held to
of
show full
Mortgagee
—
<&wkey;I73(l)
mortgages
Chattel
1.
discharge
lien.
of
of at-
possession
cattle at
of
to
entitled:
tachment
,
right
property,
evidence
held
In trial of
of
statutory
bring
ac-
authorized
mortgagee
had been
trial,
to show that
his
property.
right of
for trial of
tion
mortgage
lieD
debt before date of
legally
mortgagee
en-
chattel
AVhere
mortgage finally
attaching
discharged, and
of
at
possession of
titled
creditor entitled
ute on claim bond.
in terms of stat-
well
levy
of attachment
of writ'
time of
mortgagor as
of
creditor
himself,
mortgagor
was authorized
<@=>235— Mortgagee’s
mortgages
9. Chattel
right
statutory
of
bring
of
for trial
action
right
possession
to
property.
when debt
terminates
wholly
paid.
<@=>193
When
<@=>307
debt secured
—Is-
Attachment
2.
—Execution
wholly
by mortgage
paid,
title transferred
right
property,
stated.
of
in trial of
sues
right
extinguished,
of
is
mortgagee
payment being necessary
and with it terminates
right
of
trial
Rev. St. art.
In view of
nothing
possession;
further
than
merely possessory ac-
personal
is
of
tion,
title
in order that
joined
is
tried
fact to
and issue
right
possessory
mortgagor.
or
revest
en-
or
whether
creditor
levy
execu-
possession
of
at time of
titled
—
mortgages
Mortgagee
<&wkey;!73(l)
10. Chattel
or attachment.
tion
right.
urge possessory
held not entitled to
<&wkey;>175,
307 —Lien
If,
right
property,
3. Attachment
at time of trial of
attachment;
levy of
mortgagee’s
complete
fixed
time of
creditor
there was
cessation of
levy
right
attachment,
possession
time of
right
possession
rights.
of claimant’s
urge
determinative
claimant could not
right
attachment,
creditor
fixed
Lien of
was disturbed
entitled,
attachment,
adjudication
subject
or not
he is
of
entitled,
hence
of such
became
through
possession
unavailing.
offi-
immediate
time,
is entitled
if claimant
cer at that
<&wkey;l84
11. Attachment
lien not
—Attachment
possession
time,
and not cred-
by filing
vacated
of claim bond.
judgment in
his favor
itor
entitled to
In view of Rev. St. arts.
at-
trial of issues.
date of
tachment lien continues and is not vacated
<@=>307
right
pos-
only
4. Attachment
—Where
filing of claim bond. .
commenced is
session at
time action
<@=>53Attaching
12. Attachment
en-
—
only
controversy,
becomes
matter
equity
redemption
mortgagor.
titled to
question for determination.
mortgagee
While
is entitled
to remain
right
property at
mortgaged property, attaching
only
matter
time action
controversy,
determined
commenced
equity
redemption
creditor is entitled to
question
that becomes
mortgagor
equity
and to have
un-
interest sold
property.
der attachment lien.
<@=>l
mortgages
73(1) Payment
Chattel
5.
—
mortgages
<@=>173(1) Judgment,
13. Chattel
—
either
debt
before or after attach-
property, erroneous,
trial of
is defense to action of trial of
mortgagee
does not
lien to
, property.
right.
In order that
debt
Judgment,
property,
in trial of
possessory-
shall constitute
defense
erroneous that does not
subordinate
appear
it must
before
subject mortgagee
make
attachment lien
began
or after action
or
levied.
claimant’s.possessory right
if still
mortgages <@=>173(1)—
6. Chattel
Sale
mort-
holding possession,
proceeding.
be, successful in
gaged property
pay
.
<@=>53(1)
14. Dismissal
would not
and nonsuit
defeat
—'Where
plaintiff’s
longer
maintained!,
suit can
trial of
proceed
litigation.
court will
no further with
by mortgagee
mortgaged property
Sale
conclusively
plain-
Where facts
show that
legally
to
his
debt would not
'affect or defeat
be,
longer
tiff’s
because
suit
maintained at all
at time of trial of
ground
of action
property,
has become extin-
since
would have
guished
and no
exists at time of
established his
thereto as
plea
cessation,
proceed
in bar or
courts
meaning
will
claimant within
of Rev. St. arts.
litigation,
no further with
ordinarily
will
7790.
enter order of nonsuit or dismissal.
<@=>41Voluntary
Abatement
revival
—
<@=>314
conveyance
during
transfer
Attachment
suit does not
—Effect
“order
recovery,
affect
if at
dismissal”
in trial
of com-
party
mencement
could have
stated.
sustained it.
voluntary
rally,
conveyance
Gen<
In trial of
or trans-
.“order
during pendency
adjudication
fer made
dismissal” is
suit
effect
does not af-
of fail-
Key-Numbered
<@=>For
Digests
topic
other oases
in all
see same
KEY-NUMBER
Indexes
*2
SOUTHWESTERN
mortgages
right
&wkey;>173(4)
of
24. Chattel
his
establish
claimant’s
on
—Proof
ure
plac-
creditor,
attaching
bur-
against
fact
claimant
of
casts
on
property as
prop-
right
property
duty
proving
den of
return of
of claim
to make
on claimant
continuing.
erty.
was
right
proof
property,
fact
In
of
of
burden
trial
of
&wkey;>335
liability
be
can
16. Attachment
—When
of
casts back on
predicated
stated.
on “claim bond'’
proving
right
tq
of
or claim
primarily
of
in nature
“Claim bond” is
and,
pos-
failing
proof
continuing,
sessory right
in
his
predicat-
liability
forthcoming bond,
continuing,
claimant
adjudges
of
failure
thereon when court
ed
right
not under
statute
thereto
establish his
right
property to estab-
in trial of
entitling
judgment,
to extent of
him to final
right
his
it.
lish
continuing
possessory right
against
in him
attachment.
&wkey;>302
Attachment
17.
—Claimant’s
given
judgment are in-
advance of
mortgages
rights
<&wkey;l73(l)
25. Chattel
of sub-
—Fact
terlocutory
only;
“establish.”
sequent
character
payment may
adjudging
be cause for
accruing
pay-
property,
right
claimant costs
before date of
In trial of
judg-
rights given
ment.
in advance
him
interlocutory
until
in character
ment are
right
property,
pay-
proof
In trial of
providing
judgment;
claim-
statute
of final
claimant,
mortgagee,
subse-
must
ant,
on
in order to avoid
quent
began, may
to time action
cause
property, “establish”
proper
to such
establish
adjudging
accruing
case for
costs
before
being equivalent
prove,
cause to
of to
,payment
date \of
in favor of claimant.
legal.
recognized as valid .or
definitions, see Words
[Ed. Note. —Eor
Appeal
Court,
County;
District
Bowie
Series, Es-
Phrases,
First
Second
and
tablish.]
Hugh Carney, Judge.
ganders
Action of attachment
D.W.
&wkey;o307Requisites
issue
against
18. Attachment
—
ghaw,
L.H.
in which H. M. Farrier
property,
stated.
interposed
Judgment
claimant,
claim.
for
7784,
7780, 7781,
of Rev. St. arts.
In view
plaintiff
appeals.
Re-
requisites
in trial
of issue
versed and rendered.
plaintiff
authority
are
seeks to
In
trial of
subject property
personal
k
prop-
to his ex-
levied on
erty,
provisions
there-
nature
claim of defendant
under
statute,
ecution
to.
-appellant,
rendered
brings
the case to this court
for
re-
made,
<&wkey;308(2)
issue
19. Attachment
—After
assigned.
appellant
view of the errors
The
burden
on claimant
to establish
property.
creditor,
appel-
claimant,
mortgagee,
lee
property,
after
trial of
prop-
proof
made,
30,
on
attached
1921,
On
burden of
November
possession
erty
appellant
taken from
county
suit
filed
court
creditor,
ac-
establish
county against
ghaw,
of Bowie
H. L.
cording
claim.
nature of
county,
for
Bowie
balance
on a
promissory
note in the sum of $745. At the
—
mortgages <&wkey;l73(l) Claimant
20. Chattel
time of
the suit
possession
also
to hold
establish his
filed a bond and affidavit
creditor.
issued,
writ
it is
In trial of
officer executed
must estab-
on
December
possession..
1921, by levying upon
to hold
lish
“75
of stock
head
cak
tie,
ages,
g.,
various
kinds and
branded H.
i&wkey;67(l)
of existence at
21. Evidence
—Proof
hip
side,
side,
some on the
some
continuing
particular
time of fact
nature
ghaw,
H. D.
defendant.”
inference of its continued existence
ghaw
possession
cattle were
D.
of H.
any definite time.
and were taken from his
of continuous
Proof of existence of
levying
officer
the attachment.
The cattle
gives right
it exists
inference
nature
not,
executing
valued
subsequent
time,
the officer
it will continue
writ
but
period
Thereafter,
of time.
$900.
to exist for
definite
on December
filed oath
claim bond
<&wkey;89
of continuance
Evidence
—Inferences
took from the
of the said officer
may be rebutted.
upon.
levied
.oath
are
in-
Inferences
of continuance
recites, as
material
to state:
fact,
therefore be rebutted.
ferences
the said H.
“That
M. Farrier
claims
&wkey;>9
Property
ownership
—Continuance
the terms
that cer-
presumed.
tain chattel
executed
delivered
ghaw
Henry
February
presumption
L.
date
Rule
of continuance
following
facts,
ership.
exist,
applicable
personal
once shown
own-
described
cattle,
wit: 75
head of stock
vari-
Digests
Key-Numbered
topic
and Indexes
<&wkey;>For other oases see same
KEY-NUMBER
-<
Tex.)
-. FARRIER
3.W.)
(271
appellant pleaded
filing,
S.,
ages,
claimant.
some
branded H.
ous kinds and
hip
record
Bowie
mortgage being
side,
of
of
county
and some
of his suit
H. D.
court
clerk
office of the
issuance,
levy,
and return of the
county, Tex.”
writ,
attachment
county
the/
rendered on March
28, 1922, appellant
On March
recovered the
*3
and foreclosure
-debt
attachment
by
judgment
default
H. L.
Shaw
on
L.
lien
The
the cattle as
H.
Shaw.
county
$745,
credit, with
less $30
for
appellee pleaded
existence of a
debt
cent,
1920,
per
August 15,
10
from
interest
$4,000 owing
H.
Shaw
L.
and se-
cent,
together
per
with the sum 10
addi-
mortgage
cured
a chattel
lien on $150
attorney’s
principal
tional on
and interest as
levy
head of
at
of the
time
fees.
fore-
further decreed
attachment;
writ of
oath
on
of the
the cattle
closure
bond;
and claim
unpaid
and
debt was due
upon,
judgr
levied
which was valued in the
levy
at-
the time
of the
$900.
tachment;
legal
that he
owner and
was the
February 24,1921, H.
Shaw executed
L.
On
,the
holder
and
lien at
debt
mortgage
H.
Farrier
to se-
M.
chattel
levy
attachment;
and that
of the
date,
promissory
note
even
cure
sum
mortgage,
copy
chattel
a certified
of which
per
$4,000,
from
with 10
cent/interest
pleading,
duly reg-
was attached to the
was
payable
date,
Far-
of H. M.
order
15,
to the
provision
gave
and
istered
contained a
rier,
The chattel
and
October
due
him the
to the
of the cat-
following
mortgage
described
covered
tle
default
property:
maturity
appellant'
thereof.
then
grown
crop
supplemental
55
petition,
on
demurring
“My
to be
filed a
entire. cotton
acres; my
crop Bermu-
entire
appellee’s pleading,
specially plead-
25
acres and
and
the
ed
mortgage
3,000 bales;
amounting
range cattle,
hay,
about
da
appellee’s
debt for which the
ages,
and
various colors
head of
given
fully paid
lien was
had been
side,
side,
hip
part
on
and
H. S.
branded
of them
part
filed,
and released since the claim bond was
on
H. S.
them branded
and a
and which
appellee
and
delivered the cattle
grown
year
three
and
cows
include 90
defendant,
Shaw;
original
suit to the
H. L.
year
and
old heifers
27 one
old heifers
steers,
appel-
be- and
was
in favor of
asked
150 head
balance of the
calves;
mules,
young
ing
appellee
mares and
six
five
lant
and the sureties
ages
S.,
run-
branded H.
mule
one a horse
his claim
for the amount
on
bond
of the debt
old;
years
respectively
ning
3 to
from
and interest.
shoulder;
mare,,8
bay
1 roan
on
horse H. S.
This case was
district
tried in the
years
brands;
together
old,
with all off-
May 12,
appears
on
It
from the evi-
property.”
spring
above
and increase
dence
note executed
paid
H. L.
M. Farrier was
from
Shaw to H.
mortgage
in the chattel
There
clause
maturity
15, 1921,
on
the date of its
October
reading:
10,
1921,” as testified to
to “December
any respect either to take
I
“In case
fail
admittedly
Mr. Farrier.
.But
record
'or to
herein
care
dates of
shows that between the
10,
December
(Bowie
keep
aforesaid
the same
1921,
2, 1923,
April
payments
divers
crop
county)
to cultivate and care for the
season,
on
note to Mr. Farrier
manner
or to
made
in first-class
maturity,
Shaw,
in either event
said debt
on*
maker H.
L.
date
can declare the
of said
N. Farrier
whole
H.
unpaid
1923,
April
remained
on
there
due,
will then
to be
and the same
indebtedness
only $817.60.
the sum of
It then admit-
note
may
agent
due,
this
and he or
foreclose
tedly appears
April
the record that on
from
mortgage or take
Bank,
2, 1923,
Exchange
Mr.
the State
described,
herein
whenever
wherever
Farrier,
Shaw,
Mr.
“the balance
found,
public
and sell the same at
Shaw,
H. L.
private
notice,
on
$817.60” due
the note
auction or
sale with or without
with,
proceeds pay
debt,
interest
Farrier
transferred to
bank
that Mr.
and cost.”
mortgage.
chattel
The note
note and the
on
indorsed
the back
follows:
duly
registra-
mortgage
filed
This
Exchange
“Pay
to the order of
State
May 26,
Mort-
tion on
the Chattel
Boston, Texas,
New
on this
this
Bank of
note
balance
County,
gage
of Bowie
which coun-
Records
me,
recourse
$817.60
on
without
ty being
of H. L.
residence
Shaw- and
the April 2, 1923.”
place
was situated. At
where
writ
the time of the
that—
Farrier
testified
Mr.
H.
Farrier
of H.
Shaw to
the note
unpaid
L.
M.
(the
April 2,
“transferred it
On
past
due.
they
bank),
(the
note)
them
on
case was tried'before
the court
$817.60, and then the $50
balance of
debt—the
they
joinder
July
of issues
made
Hubbard, which
$867.60.
owed Mr.
parties,
pleadings
ren-
both
the-pay-
of the transfer
consideration
The
ment
appeEee,
Shaw,
in favor of
and I
me
dered
liabilities
271 SOUTHWESTERN
transferred the
against Mr. Shaw.”
chattel
tel
note,
tained the
sion.
H.
implied
the
yet paid
2, 1923,”
payment
Since that
note
paid
on.
tion of the
tel
white-faced cattle
Farrier
due to
above).
The
the
have been
also
the
“Mr.
“transferred the note
head that was attached. After the
Farrier sold
original
mortgage
action
ruary 23, 1923.”
tle covered
that
to Mr. Shaw order for
debt
“$50”
ance of
same
Springs,
ruary
mention
gage.
State
or
of
Shaw
“My
LEVY,
The bank
R. M.
It
Sid
my
New
marks
sale on the
L.
the time owed
mortgage
mortgage
stated
bank to
total
mortgage
cashier
worked
lending
he
does
to the State
Farrier,”
Exchange
Shaw
mortgage.
Orumpton,
State
security
might
bank took a
The new note
Mr. Farrier. The note
entirely
mortgage
Boston,
(Shaw)
appears
Hubbard
to
from the
[1]
Mr. Farrier
mortgage,
the Farrier note
of
mortgage,
the
appears
and
amount
does
not
J.
in the record—and
mortgage
Mr. Farrier turned
the intention
the creation of
the
note and
Exchange
executed a
out,
identification,
bank the
him the amount
have
have owed Mr.
was on “two hundred
then ‘‘withdrew
to secure
original
and lien.” Mr.
two
appear
“I
the
was executed
for record Feb- and it was filed $4,000
possession through the officer at that
(after
this
not
note without
as the
same to the bank.
continued
had,
between
As
Bank,
important
that
I
-that
Exchange Bank. Mr. Shaw
negotiated
of
the account of Mr.
the
bank testified:
new note and a new
mules,”
evidence.
appellee.
the bank —some
Texarkana,
a matter
mortgage
or
give
the cattle covered
those
mortgage
and note
mortgage
Bank
note or
and
$817.60.
that
after
Johnson
stating
indebtedness that
but the
bank
cashier
note, and
applied
State
and around
also
any
Mr. Shaw
my
'mortgage
February
“$817.60”
for the
indebtedness, and
Mr.
assignment
and
etc. The execu-
records” and.
making
the lien can be
pay off the
recourse
done
Exchange
including
is all
Mr.
kind
bank
interest
Farrier.
It
to secure the
consent Mr.
from Mr. Shaw the time
the cattle
Shaw
the bank
was
testified,
&
in its
Shaw or
try
given
was
fact,
were included
to have the
also
transfer of
Waters,
appears
Shaw
appellant.
The chat-
the cattle
given for
facts as
payment.
proceeds the
original,
does
and the
amount,
and
a trans-
head of
the cat-
balance
a chat-
posses-
on me.
get
bránds
Dalby
the 75
there-
of er-
April
Bank
mort-
claim judgment
That
Feb-
new the
writ
bal-
and
Mr.
Mr.
the
not
re-
the
and to
fore the
ror
mortgagor
several
defendant
mined
that becomes
facts,
ment in his favor
of
attachment,
registered
cuted a chattel
cattle,
in
had
released
the
expressly
the
secure the
If
the date
be the
the
the
levy
debt was due
levy
commenced the
Exchange
statutory
session of
the
and
the
of
action,
order
any
The
Smith
Shaw himself. State
[5-7] The
[2-4]
error, regard
abatement
tried whether
personal property
is entitled or
creditor. In
issues.
further maintenance of
mortgaged
is the
writ of
personal
lien
appellee
appellee
interest
of
been
Civ.
was indebted
writ
(Tex.
therein.
only
claimant is entitled to
'case,
The
and
besides other
the
propositions
long
appellee
dismissal
his lien
of the
fully
for was
proceeds
creditor Mr.
action for the
the
App.)
provided that,
failed to
Bank v.
in the
appellant’s
one
special
sustained
attachment
proceeding in a
of execution
the
attachment,
Civ.
he
before the
unless,
thereon.
property.”
cattle at
at the time the “officer
could take
creditor,
and
the attachment
cattle.
questioning
entitled
issue
passing upon
App.)
at the
on the
involved,
not
only question
entered.
unpaid
facts
authorized to
the
páy
R.
Keys
are based
S.
and sell the
the date of
be had
joined
the
entitled
personal property,
the time of the
plea
appellant,
matter
affirmatively
The chattel
W.
Clearly,
166 W.
is entitled to
C.
writ
attachment,
debt
the note at
view of
merely
trial of
Exchange
Shaw as
or
as
attached
clerk’s office.
Article
creditor is
L.
possession
debt. At the
Mill Grain Co.
sale
entitled to the
the
evidence,
S.
the action should
that
trial of the
attachment
then
the rendition
well
upon
attachment,
and
the time of
p.
the
court,
thereon.
the action
abatement
pay
possession
&
150 head
writ,
controversy,
the
the writ
that
he,
the attach-
assignment
the
75 head
666;
cattle.
immediate
same,
event
bring
maturity,
mortgage
Bank
the
pleading
pleaded,
appellee
right of
and not
fixed
further
a
trial of
fact
levy of
There
H.
deter
facts,
State
judg
R.
time.
shall
duly
debt
*4
The
exe-
pos-
and
Mr.
the
the
the
the
the
or
L.
of
S.
order
Tex.)-
bank both the
*5
.spect.
tion,
shall constitute
to
mortgage
suit the
does not
evidence'
property under the chattel
original mortgage of Mr.
purpose
proceeds
default
And it
conveyance
presented
tablished
ror in not
the
of the debt. The writ
the suit is commenced
of the statute. Articles
impair
would not
ties,
tion
his
33 Tex.
ficer
would still
the indebtedness
out
the
circumstances
“the
ceived
and on the
mined
that the
sustained
ency
claimant
ed evidence shows
Civ. App.
We have
[8]
support
accordingly
a
vendee
mortgaged
him,
impair
made before
suit, since,
sale of the
ato
in the
23 S.
impossible.
intended
reversible
judgment
trial” of the issues between
It
of a
Therefore
the
66; Bailey Laws,
the
here,
appellee merely transferred to the
so
his
On Motion for
taken
recovery,
of sale
points
the
the
W.
suit
payment maturity is
legally
mortgage,
or
or
rendering
be
the
mortgagee
carefully
claim
appear
the evidence did not show
right
original
transfer
transferee. Hearne v.
general
rendering
primarily
nature of
344;
Thompson,
464, 1 S. W.
Willis v.
66 Tex.
liability
predicated
thereon
155;
Bender,
Tex.
20 S. W.
State v.
85
68
adjudges a failure
the
the
when
court
Tex.