35 Tex. 544 | Tex. | 1872
The appellant brought his action in the court below to enforce a specific lien upon certain household and kitchen furniture, claimed by the defendants as exempt from execution. It appears that the appellant had leased to John Dillon, J. F. and Johanna Gunderman, the latter two being husband and wife, a certain house and premises in the city of Galveston, to be used by the lessees as a hotel. The property in con
“And for the security of the lessor, his heirs or assigns, for the collection of the rent in the value stipulated, a mortgage lien, with powers of sale in the said lessor, his heirs or assigns, is hereby reserved on all property of said lessees in said buildings or on said premises, to secure the rent for the term.”
There is no specific property named, over which this lien is to operate, but it may have been the intention of the parties that it should operate on all the property placed upon the premises by the lessees during the term. Can we give such force to this lease as to make it a lien on property absolutely exempt by law from execution ? Gunderman and wife appear to have been declared bankrupts, and plead their bankruptcy in bar of the action; also claiming that five hundred dollars worth of the personal property, which had been sequestered at the suit of the plaintiff, was exempt under the provisions of the Bankrupt Act of March 3, 1867. They also plead in reconvention, demanding damages. The appellant insists, first, that there was error in the ruling of the court, in sustaining the demurrer to the amended petition. There was certainly no error in this ruling of the court; the amended petition was a mere attempt on the part of the pleader to give a legal construction to the lease, and further to explain ambiguities where there was really no ambiguity.
In the second assignment for error, it is insisted that the court erred in permitting Gunderman and wife to prosecute their suit in reconvention, in their own names. The title of the bankrxxpt is good against all the world except his assignee, and none but the assignee could have urged this objection. (Smith v. Gordon, 3 N. Y.
But could the assignee claim the right to prosecute-an action for trespass to the personal property of the bankrupt, which he is bound to set apart under the terms of the bankrupt law, and which does not really pass to the assignee as assets for the use of the creditors ? We think not; for what the law requires to be done, it presumes has been done, until the contrary is-shown; and the legal presumption which arises in this case is, that the property in controversy was reserved from the fund of assets, and belonged exclusively toG underm an and wife ; and to them belongs the exclusive right to claim and sue -for any trespass committed upon it. (See Bankrupt Act of March 2, 1867, § 14; Bankrupt Register, Vol. 1, p. 154.) The third assignment of errors is embraced in the first. The court charged the law of the case, and the charge was qxxite as favorable to the appellant as it was to the appellees. We think the motion for a new trial was properly overruled. We construe the terms in the lease, “on all property of said lessees in said buildings or on said-premises,” to have no other binding force or efficacy in law than to cover only such property as is not exempt-by law from forced sale. Had the husband and wife-joined in a mortgage given over specific property, though the same might be exempt, at their option, from execution and sale, we should still hold the question as open to discussion; but this is not such a case, and the judgment of the district court is affix*med.
Affirmed