Avery v. Popper

• Decision Date: 13 April 1898
• Parties: AVERY et al. v. POPPER et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

45 S.W. 951

AVERY et al. v. POPPER et al.¹

Court of Civil Appeals of Texas.

April 13, 1898.

Appeal from district court, Hunt county; Howard Templeton, Judge.

Actions by I. Popper & Bro. against John M. Avery and others, and by R. R. Neyland & Co. against the same defendants, were consolidated, and a judgment had adjusting the rights of the various parties. From this judgment defendant John M. Avery and others appealed, and plaintiffs filed cross errors. Reformed.

Cobb & Avery, for appellants. Craddock & Looney, for appellees.

NEILL, J.

On June 29, 1893, I. Popper & Bro. brought a suit in the district court of Hunt county against J. H. and M. E. Cooke, W. W. Avery, and John M. Avery, to recover of J. H. and M. E. Cooke the sum of $775, with interest upon the note described in our conclusions of fact, and to foreclose against all of defendants a mortgage on the property described in our conclusions of fact. On the same day R. R. Neyland & Co. brought a separate suit against the same parties to recover the balance due on said note after deducting the amount for which Popper & Bro. sued, and likewise to foreclose said mortgage. In each suit a writ of sequestration was sued out against W. W. and J. M. Avery, and the property seized and replevied, as shown in our conclusions of fact. On the 16th day of January, 1894, motions made in each case by defendant John M. Avery to quash the sequestration proceedings were overruled, and on the same day, on application of plaintiffs in each case, they were consolidated. None of the defendants except J. M. Avery filed answers. After the two cases were consolidated, the plaintiffs filed an amended petition, in which, in addition to the matters pleaded in their several petitions in the original suits, they alleged the issuance and levy of the writs of sequestration, the replevy of the property by J. M. Avery, and that afterwards Avery had moved the property out of Hunt county, and converted it to his own use; that they claimed a mortgage lien upon the property in controversy; and that, if the court should hold that the mortgage did not cover any specific stock, they had a right to elect, and did elect, to claim the property involved herein. In the amended pleadings, after the consolidation, W. W. Avery was not continued as a party to the suit. In his answer J. M. Avery pleaded in abatement the privilege of being sued in Dallas county, in which he alleged his residence was, in so far as the suit was based upon the alleged conversion of the property in him. He excepted to the amended petition upon the ground that the partial transfer of the notes could not be made and separate suits brought and maintained thereon. In his answer to the merits he alleged the purchase of the property under an execution issued against J. H. Cooke, shown in our conclusions of fact; that the mortgage sought to be foreclosed was void for want of sufficient description of the property, because at the time it was given J. H. and M. E. Cooke had a great many more similar stock, which were kept and mingled with the stock mortgaged; that the mortgage included a great many more stock besides those seized and purchased by him under execution, and sequestered in the consolidated suits; and prayed that the mortgage be foreclosed on all the stock and the other stock sold first. He also pleaded that the mortgage was fraudulent and void, and that J. H. Cooke was insolvent when it was given, and had ever since remained so, and it was with the knowledge and consent of T. H. King and plaintiffs that J. H. Cooke had sold some of the mortgaged property and appropriated the proceeds to his own use. He also pleaded the statute of limitations of four years, and that the debt sued on had been in part paid. In a supplemental petition the plaintiff alleged that the property mortgaged to secure the note was the separate property of Mrs. M. E. Cooke, who was the wife of J. H. Cooke; that, it all being her separate property, the defendant had no right to demand that the mortgage on the property not involved in this suit should be foreclosed. On the 26th day of October, 1897, the case was tried by the court without a jury, and the plea in abatement filed by J. M. Avery was overruled, all the sequestration proceedings quashed except the replevy bonds, costs of sequestration taxed against the plaintiffs, and judgment was rendered in favor of I. Popper & Bro. against J. H. Cooke for the sum of $1,630, with interest thereon from date of judgment at the rate of 12 per cent. per annum, and in favor of R. R. Neyland against J. H. Cooke for the sum of $1,774, with interest from date of judgment at the rate of 12 per cent. per annum, together with a foreclosure of the mortgage as against J. H. Cooke and wife, M. E. Cooke, upon all the property described in our conclusions of fact, except the 50 calves. Judgment was also rendered in favor of plaintiffs against J. M. Avery and the sureties on his replevy bond for $850, together with 6 per cent. interest thereon from date of judgment. No personal judgment was rendered against Mrs. M. E. Cooke. From which judgment J. M. Avery and the sureties on his replevy bond have appealed. On this appeal the appellees have filed cross assignments of errors.

Conclusions of Fact.

On May 26, 1891, J. H. Cooke and his wife, M. E. Cooke, executed and delivered to T. H. King their joint and several promissory notes for $1,940, payable on the 1st day of November thereafter, with interest from January 1, 1891, at the rate of 12 per cent. per annum. The note provided for 10 per cent. attorney's fee, if placed in the hands of an attorney for collection. On the 10th day of April, 1892, the payee, T. H. King, transferred without recourse to I. Popper & Bro. an interest of $775 in said note, with interest thereon at the rate expressed in the note from its date. At the same time said payee transferred without recourse the balance of said note, principal and interest, to R. R. Neyland, under the firm name of R. R. Neyland & Co. To secure the payment of said note, the makers thereof on May 26, 1891, executed and delivered to T. H. King their chattel mortgage, whereby they conveyed to him, among other property, 50 cows, with their spring calves (spring of 1891), cows branded "Cook" on the left side, and "AK" on left hip, the calves at the time not branded; also one bay mare colt, one bay horse colt, and one black mule colt. This instrument was filed and duly registered as a chattel mortgage in the chattel mortgage register of Hunt county, Tex., in which the mortgagors resided and the property was situated on May 30, 1891. On June 14, 1893, the United States marshal, by virtue of an execution issued on June 9, 1893, out of the United States circuit court of Dallas, on a judgment therein rendered in favor of W. W. Avery and against J. M. Cooke and sureties on his sequestration bond, but not against his wife, said sureties being O. Hail and William Hodges and J. M. Johnston, levied upon the property above described. The levy was made in Hunt county by direction of J. M. Avery, the attorney of W. W. Avery. All of said property was on June 28, 1893, by virtue of said execution, sold by the United States marshal in Hunt county, Tex., at public outcry, and was bid in by J. M. Avery in the name of W. W. Avery, the amount of the bid being credited upon the execution, and all of the property was then delivered by the marshal to J. M. Avery, the attorney of W. W. Avery. On June 29, 1893, I. Popper & Bro, and R. R. Neyland & Co. filed separate suits against J. H. and M. E. Cooke and W. W. and J. M. Avery to recover of the makers of the note above described the amounts respectively due them by reason of the transfer of said note by the payee, and to foreclose the mortgage given to secure the note upon the property above described. The property was seized, while in possession of J. M. Avery, by virtue of writs of sequestration issued in these suits. After such seizure J. M. Avery replevied and resumed possession of the property, Charles C. Cobb and H. I. Phillips being the sureties on his replevy bond. After J. M. Avery replevied the property he drove it out of Hunt county, Tex., and within a short time thereafter sold and disposed of all of it. He had none of said property on hand when this suit was tried in the court below, and would have been wholly unable to produce said property, or any part thereof, in satisfaction or partial satisfaction of the judgment rendered in said court. At the time the mortgage was executed to secure the note there were many more animals of the same description mingled with those upon which the mortgage was given, but the evidence is sufficient to show that just prior to the execution of the mortgage the animals embraced in it were pointed out to Mr. Neyland, who represented King in taking the mortgage security and drafting the mortgage. But the animals covered by the mortgage were not separated from the others of the same description with which they were mingled, nor was there such separation when the execution in favor of Neyland was levied upon the...