Sanger v. Burke

Decision Date26 January 1898
Citation43 S.W. 1070
PartiesSANGER et al. v. BURKE et al.
CourtTexas Court of Appeals

Appeal from district court, Bell county; John M Furman, Judge.

Action in attachment by Sanger Bros. against Burke Bros. J. A. Harrell made affidavit and gave bond, claiming the attached property. From a judgment in favor of claimant, plaintiffs appeal. Reversed and rendered.

Sanger Bros. brought suit in the county court of McLennan county against Burke Bros. on a debt, and obtained an attachment to Bell county. This attachment was levied on certain merchandise. J. A. Harrell made affidavit and gave bond, claiming the property. Issues were made up, and a trial had before the court on January 16, 1897, resulting in a judgment in favor of the claimant. Appellants excepted, and gave notice of appeal. The case is brought up on the court's findings, without a statement of facts. The findings of the court are as follows:

Findings of Fact.

"(1) On the 29th day of December, 1894, and prior thereto, Burke Bros. (a firm composed of J. J. Burke and A. L. Burke) were indebted to Sanger Bros. in the sum of $327.16.

"(2) That on said date Burke Bros. and the members of said firm were in business in Holland, Bell county, Texas, and on said date they executed the following instrument:

"`The State of Texas, Bell County. Know all men by these presents, that we, J. J. Burke and A. L. Burke, of Holland, Bell county, Texas, composing the firm of Burke Bros., merchants doing business as such in said town of Holland, being indebted to the persons hereinafter named in the sums hereinafter mentioned, and to other persons not specially herein named, and being desirous of providing for the prompt payment of our said indebtedness in the order hereinafter mentioned, have bargained, sold, and delivered, and by these presents do bargain, sell, convey, and deliver, to J. A. Harrell, of Bell county, Texas, our entire stock of goods, wares, and merchandise now owned by us and in our possession in our storehouse in Holland, Bell county, Texas, and all office furniture, show cases, scales, and fixtures, shelving, and counters, belonging to us in said storehouse: To have and to hold the same unto the said Harrell, for the following uses, purposes, and trusts, absolutely, forever, viz.: The said Harrell shall, as soon as practicable after the execution of this instrument, take possession of, and sell for cash, either at public or private sale, all of the goods, wares, and merchandise, and other property, hereby conveyed, keeping said property, wares, and merchandise insured until disposed of, and shall apply the moneys arising from such sale as follows, viz.: He shall first pay off, in full, our indebtedness due by us by open account to Harris & Saunders, of Belton, Texas, in the sum of one hundred dollars, and, after the payment of said sum of one hundred dollars to Harris & Saunders, he, the said Harrell, shall next pay to Reed Bros., bankers, of Holland, Texas, our indebtedness to them, in full, which indebtedness consists in note and overdrafts amounting to three hundred and fifty ($350.00) dollars; and, after the payment of said sum of three hundred and fifty dollars in full to said Reed Bros., the said Harrell shall next pay our indebtedness, in full, to J. A. Melvin, of Bell county, Texas, consisting of our note to him for four hundred and fifty dollars, and about one year's interest thereon at ten per cent.; and after the payment of said three sums above mentioned, in the order named, said Harrell shall next apply the remaining portion of said moneys to such of our debts as may be established against us, or shall hold the same subject to our order, or the claim of any creditor not hereby preferred, paying each creditor not hereby preferred a pro rata amount of the money that may remain in the hands of said Harrell after the three creditors first herein named are paid in full. And it is hereby expressly provided that said trustee, Harrell, shall be, and is hereby, allowed fifty dollars per month for his services in selling said property and paying out the money as herein provided; said monthly compensation to extend not over two months. But if he shall sell said stock, in bulk, at earlier day than two months hence, his compensation shall, instead of fifty dollars per month, be ten per cent. of the money he received. In case there is any of said money remaining after paying the debts and compensation herein provided for, said Harrell shall pay the same over to us; it being hereby understood that all necessary expenses, and the compensation for said Harrell, shall be retained in his hands as the same are incurred and is earned by him. Witness our hands this, the 29th day of December, A. D. 1894. J. J. Burke. A. L. Burke.

"`State of Texas, Bell County. Before me, W. W. Upshaw, clerk of the county court of Bell county, Texas, on this day personally appeared J. J. Burke and A. L. Burke, both known to me to be the persons whose names are subscribed to the foregoing instrument, and acknowledged to me that they executed the same for the purposes and consideration therein expressed. Given under my hand and seal of office this, the 29th day of December, A. D. 1894. W. W. Upshaw, County Clerk of Bell County. [Seal.]

"`Filed for record December 29, 1894, at 7:50 o'clock p. m. W. W. Upshaw, County Clerk of Bell County.'

"(3) That, at the time of the making of the said deed of trust, Burke Bros. and the members of said firm were in an insolvent condition.

"(4) That said J. A....

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