Ames Iron Works v. Chinn
| Decision Date | 09 December 1896 |
| Parties | AMES IRON WORKS v. CHINN. |
| Court | Texas Court of Appeals |
Appeal from Brazoria county court; A. R. Masterson, Judge.
Action by the Ames Iron Works against H. W. Chinn for possession of property with sequestration. From a judgment in favor of defendant, plaintiff appeals. Reversed.
Duff & Sproles and Coke & Coke, for appellant. Masterson & Masterson, for appellee.
Mahoney & Swanson gave appellants a chattel mortgage (deed of trust) on an engine and boiler on December 4, 1891, witnessed by J. S. Gray, and not acknowledged. The property was described as being in Brazoria county. The instrument was filed for registration with the county clerk of Brazoria county on December 11, 1891. The property was not in Brazoria county when the mortgage was made, but was at that time bought of appellants, and shipped to Brazoria county, to Mahoney & Swanson, from Tyler, Tex., later in December, 1891. Chinn obtained the property under mortgage given by Mahoney & Swanson after it came to Brazoria county. A sale was made by the trustee in June, 1894, under provisions of the deed of trust, and the property bought by appellant. In August, 1894, appellant brought this suit against Chinn for possession of the property, with sequestration. Defendant answered, setting up title to the property and damages for wrongful seizure.
The grounds upon which the court placed its judgment for defendant are stated in the conclusions of law, viz.: (1) That the sale by the trustee when the property was not in his possession or control was a nullity; (2) that the filing of the mortgage in Brazoria county, when the property was not in Brazoria county, and the mortgagee not a resident of such county, was void as to defendant.
The first of these propositions is not correct as applied to this case. The instrument contained a provision that the trustee might sell with or without taking possession, and thus the contract itself relieved the sale from this objection. The second proposition is one of more difficulty. The property, when the mortgage was given, appears to have been in Smith county, and there awaited shipment to Brazoria county, where the contract stated the property to be. The mortgage was not registered in Smith county, but was deposited for registration in Brazoria, on the 11th of December, at which time the property had not reached there; but it did arrive there soon afterwards, and long before the adverse claim had originated. The act relating to chattel mortgages prior to that of 1879 provided that such mortgage should be registered in the county where the property is situated at the time of registration (see Vickers v. Carnahan, 4 Tex. Civ. App. 308, 23 S. W. 338), or in the county of the mortgagor's residence; and, further, that, if the mortgage should permit the removal from the county in which the mortgage had been registered, it should become void as to creditors and purchasers if not registered within four months in the county to which it was removed, so long as the same remains unregistered. The act of 1879 omits this provision, but provides for a case of removal without the consent of the mortgagor; and, as this act repeals the previous act so far as inconsistent, it has been held that the said provision of the former act remained in force. Reed v. Spikes (Tex. App.) 15 S. W. 122; Vickers v. Carnahan, supra. It seems to us that it was the intention, at least where the property is removed by the consent of the mortgagee from the county in which it was when the mortgage was given, to authorize registration of the instrument in the county to which the property might be taken. The original provision which, we think, continued in force, makes registration in such other county in such case essential to conserve the rights of the mortgagee, and, it will be observed, enables him to register it in such other county at any time, but with a loss of his rights as to third persons for such time as it may not be registered after the four months. In other words, when it is recorded in the county where the property was originally, this registration will be valid in the county to which it may be removed for four months as to all persons. After that time the original registration becomes ineffectual, and, to protect himself against subsequent purchasers and creditors, the mortgagees must register it in such other county. It is therefore not a fair or reasonable interpretation of this statute to hold that the mortgage is not permitted to be registered in the latter county, unless it had been registered in the former. We are of opinion that if the mortgage had not been registered at all until after removal with the consent of the mortgagee, there is statutory authority for filing it in the county to which the property is...
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