20 S.W. 63 | Tex. | 1892
This was a trial of the right of property in certain bar room furniture, which was seized by virtue of a writ of sequestration, issued from the District Court of Hunt County, in favor of the appellee and against one J.S. Harrison. The plaintiff in the original suit, the appellee here, sought in that action to foreclose a mortgage upon the property sequestered. The writ was executed in Fannin County by the sheriff of that county. The appellants having made an affidavit and given bond as required by the statute for the trial of the right of property, and the property having been valued by the sheriff at $500, the oath and bond, together with a copy of the writ, were returned to the District Court of Fannin County.
In his tender of issues the plaintiff alleged, in substance, that be was the holder of a note made by Harrison, which was secured by a mortgage upon the property sequestered. The claimants pleaded a general denial, and specially answered that the mortgage was fraudulent and void, and *214 that before the levy of the writ of sequestration they had acquired title to the property by a purchase at a sale under execution against Harrison, the alleged mortgagor. Such is an outline of the issues as presented in the pleading. The validity of the writ of sequestration was not put in issue by any special plea.
It is insisted in appellants' brief, that because the value of the property as assessed by the sheriff was exactly $500 the District Court did not have jurisdiction to try the cause. In Erwin v. Blanks,
Upon the trial the plaintiff offered in evidence the copy of the writ of sequestration which had been returned by the sheriff, and its admission was objected to by the claimants, upon the ground that it was not certified to as a true copy of the original writ. It was admitted by the court notwithstanding the objection. In Fort Worth Publishing Company v. Hitson,
The court also admitted in evidence the mortgage alleged in plaintiff's pleading, over the defendants' objection. The ground of objection was, that there was no proof of its execution. We think the objection well taken, and the mortgage should have been excluded. This was a chattel mortgage, and is required to be registered under the Act of April 22, 1879 (2 Sayles' Civil Statutes, article 3190b); and since that act went into effect it is on instrument that is not authorized to be recorded by article 4331 of the Revised Statutes. Therefore we think it was not admissible without proof of its execution, even if it had been filed among the papers three days before the trial and proper notice had been given. The Act of April 22, 1,879, is peculiar. It permits the registration of chattel mortgages without acknowledgment in proof of their execution, *215
and therefore we think it was not intended that they should be admitted in evidence under any circumstances except upon proof as at common law. The case of Grounds v. Ingram,
The other assignments of error either present questions already disposed of by what we have said, or are such as need not arise upon another trial.
For the error of the court in admitting the mortgage without proof of its execution, the judgment is reversed and the cause remanded.
Reversed and remanded.
Delivered June 10, 1892.