Hart v. Blum

• Decision Date: 04 February 1890
• Citation: 13 S.W. 181
• Parties: HART <I>et al.</I> <I>v.</I> BLUM.
• Court: Texas Supreme Court

13 S.W. 181

HART et al.v.

BLUM.

Supreme Court of Texas.

February 4, 1890.

Commissioners' decision. Appeal from district court, Galveston county; WILLIAM H. STEWART, Judge.

Wm. B. Lockhart, for appellants. Labatt & Noble, for appellee.

HOBBY, J.

It appears from the record in this case that on the 10th day of October, 1887, W. L. Austin, of the firm of Austin & Fisher, executed to the appellee, A. Blum, an instrument in writing conveying to said Blum a stock of goods, wares, and merchandise, which constituted the drug and medicine store of said Austin, in the city of Galveston. The consideration recited in this instrument was an indebtedness due Blum of about $1,650. It conveyed the property to appellee, first to pay himself the said sum of $1,650, and all necessary expenses, etc., incurred in converting the stock, etc., into cash; the surplus, after the payments, to be divided pro rata between several named creditors, among them the appellants; "to whom," the conveyance also recited, "I am indebted in various sums of money upon their several indebtedness against the late firm of Austin & Fisher, of which I was a copartner, and for which indebtedness I am liable, and assumed the payment thereof." Appellants, to whom the firm of Austin & Fisher were indebted for goods sold in the sum of $1,146.54, sued out a writ of attachment from the district court of Galveston county, caused the same to be levied on the property so conveyed to Blum, which was by order of the court sold. The appellee, Blum, became the purchaser for the sum of $790. This suit, after said seizure and sale, was brought by the appellee, Blum, against Hart & Co. and the sheriff and his sureties, for the value of the goods so seized and sold. The cause was tried by the court without the intervention of a jury on November 22, 1888, and judgment was rendered in favor of the appellee, Blum, for the sum of $1,523.19, the value of the goods so attached, against the appellants, said sheriff and his sureties.

There are several assignments of error discussed at length in appellants' brief, but the view we take of the case will dispense with the necessity for considering each error assigned; and we will confine ourselves to the questions we believe to be decisive of the rights of the parties. These involve —First, the construction of the instrument under which the appellee, Blum, claims title to the property conveyed to him by Austin; and, second, whether, under the facts of this case, he can recover from the appellants the value of the goods attached by them. It is claimed, under the assignment first presented, that the court erred in admitting in evidence the instrument of October 10, 1887, conveying the property to appellee; because, if offered as a mortgage, it was not properly recorded, and, if offered as an absolute sale, it was at variance with the allegations of petition. It appears from the certificate of record attached to the instrument that it was recorded at length in the records of deeds, Book 65, p. 284, in Galveston county. In so far as the objections were predicated upon the claim that the instrument is a chattel mortgage, and should therefore not have been recorded at length, and that its record in a book for the registry of deeds is not such evidence of a deposit and filing as required by the statute with respect to chattel mortgages, it is only necessary to say that the instrument under consideration is not, in our opinion, a chattel mortgage. Discussing a conveyance, which in its essential features was identical with the present instrument, and which it was earnestly contended was a mortgage, our supreme court construed it to be an assignment. Not, however, within the scope of the statute, but an assignment, the validity of which must be tested by the principles of the common law. Johnson v. Robinson, 68 Tex. 399, 4 S. W. Rep. 625. The instrument before us, as in the case cited, was not intended as a security for debt, providing simply a lien on the property, and leaving an equity of redemption in Austin, the mortgagor, which are the characteristics of a mortgage with us. By its terms Austin could have no power to cancel or defeat this instrument by a payment or discharge of the debts therein mentioned, which he would have in the case of a mortgage. All the interest and title owned by Austin in the property are by the terms of the conveyance vested in the assignee, Blum, and such disposition is directed to be made of the property as is not merely inconsistent with the exercise of any further control over it by Austin, but it is placed entirely beyond his control by an absolute transfer to appellee to be sold, and the proceeds to be appropriated to the payment of the creditors therein named. We do not think the court erred in admitting the instrument in evidence. Nor do we think there is any variance between it and the allegations descriptive of it. These are that "the property had been assigned, transferred, and conveyed and delivered to this plaintiff by one W. L. Austin, then the owner on the 10th day of October, 1887, in trust to...