Ashworth v. Dark

• Decision Date: 01 January 1858
• Citation: 20 Tex. 825
• Parties: WILLIAM ASHWORTH v. JOSEPH N. DARK.
• Court: Texas Supreme Court

20 Tex. 825

WILLIAM ASHWORTH

v.JOSEPH N. DARK.

Supreme Court of Texas.

1858.

In a suit to forclose a mortgage on personal property, the defendant may plead in reconvention that the plaintiff has appropriated the property to his own use, and pray a recovery of the actual value of the property.

Error from Orange. Tried below before the Hon. J. M. Maxcy.

Suit commenced September 27th, 1855, by Dark against Ashworth, on two promissory notes for $1,000 each; both dated October 30th, 1854; one payable at six, and the other at twelve months, with ten per cent. interest from date; and to foreclose a mortgage on a stock of cattle, amounting to about six hundred head, more or less, branded T. S. The mortgage was filed as part of the petition, and contained a clause authorizing Dark, the mortgagee, in case of failure of payment, to take the said cattle and sell them at public sale, on twenty days' notice, at the town of Beaumont. Answer by defendant, of general denial, and plea to the effect that the plaintiff was indebted to defendant in the sum of $6,000, for that on or about the first day of August, 1855, the said Dark, in the county of Jefferson, illegally and forcibly took possession of said stock of cattle, then numbering 1,000 head, of the value of $6,000, and counterbranded the same, and branded them with his own brand; drove them out of their usual range into the county of Liberty, to the waste and injury of said cattle's great damage, and injury and damage of this defendant $6,000, for which defendant prayed damage.¹

Fall term, 1856, plaintiff amended by repeating the allegations of his petition; and alleging that in the note first falling due, were the following credits, to wit: June 23d, 280 head of stock cattle at $3.50 per head, $728.00; July 18th, 18 head of cattle; September 8th, 56 head of stock cattle; October 4th, 1855, 10 head of cattle; that the balance of said notes was still unpaid; prayer for judgment, and foreclosure of the mortgage, and decree for sale of the cattle mentioned in it, etc. Same term, defendant amended by inserting at the proper place, the words “and then and there appropriated the same to his own use and benefit.” Same term, plaintiff again amended, by alleging that under the instructions of defendant, and in pursuance of the power in the mortgage, he, after giving the notice required, sold a part of the cattle mentioned in the mortgage, and applied the proceeds as a credit on the first mentioned note, as set out in former amendment. Same term plaintiff excepted to all that part of defendant's answer, except the general denial, on the ground that it was insufficient in law and contained no valid defense. Exceptions sustained; and leave to defendant to amend.

Amendment filed accordingly by defendant, striking out all that related to trespass, and averring that on or about the first day of August, 1855, plaintiff became indebted to defendant in the sum of $10,000 for 1,000 head of cattle branded as in original answer, in this manner, to wit: about said time plaintiff took said cattle into his possession and converted them to his own use, thereby promising to pay defendant whatever they were worth; defendant avers they were worth ten dollars per head or ten thousand dollars; that said cattle were in Jefferson and Liberty counties when plaintiff took possession of them; and that plaintiff had not paid for them, although often requested so to do. Wherefore defendant pleads the above in reconvention, and prays, etc.

Exception to the plea, thus amended, on the ground that it was insufficient, in that it did not allege that defendant sold plaintiff any cattle, but alleged that plaintiff took possession of the cattle, and did not allege any...