Bank of California v. Marshall

• Decision Date: 14 December 1892
• Citation: 23 S.W. 246
• Parties: BANK OF CALIFORNIA v. MARSHALL.
• Court: Texas Court of Appeals

23 S.W. 246

BANK OF CALIFORNIA v. MARSHALL.

Court of Civil Appeals of Texas.

December 14, 1892.

Appeal from district court, McLennan county; L. W. Goodrich, Judge.

Trial of right of property to attached goods between the Bank of California, as plaintiff, and John F. Marshall, as claimant. Judgment for claimant. Plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by FISHER, C. J.:

This was a proceeding under the statute to try the right of property to certain goods, wares, and merchandise levied on under an attachment sued out by the Bank of California, as plaintiff, against Eaton, Guinan & Co., from the district court of McLennan county. The property was regularly levied on under the attachment, and John F. Marshall filed an affidavit claiming the property, and gave a bond to try the right to the same under the statute. The case was tried by the court upon an agreed statement of facts, on the 11th day of November, 1891, and there was judgment for the defendant claimant, Marshall, from which judgment the plaintiff appealed. The following is a written agreement signed by the attorneys of the respective parties to this suit, stating the facts of this case, and the facts of seven others, which we adopt as the findings of fact in this cause:

"The following written agreement, signed by the attorneys of the respective parties, was offered in evidence: `Suits in the district court of McLennan county: No. 5,002, Sweet Springs Milling Company v. John F. Marshall; No. 5,003, Steinwender, Stoffregen & Co. v. John F. Marshall; No. 5,004, the Bank of California v. John F. Marshall; No. 5,005, the Fairbanks Canning Company v. John F. Marshall; No. 5,006, Wm. Numsen & Sons v. John F. Marshall; No. 5,007, Wm. Numsen & Sons v. John F. Marshall; No. 5,008, Price & Lucas v. John F. Marshall; No. 5,009, Church & Co. v. John F. Marshall. In order to facilitate a trial, we, plaintiffs and defendants in the above suits, agree to the following facts, upon which each of the above causes shall be submitted to the court: (1) It is agreed that each of the plaintiffs was a creditor of the firm of Eaton, Guinan & Co. at and before the execution and delivery of the deed of trust to John F. Marshall, hereinafter named, in the several sums hereinafter set forth, for which judgments were rendered. (2) That by attachments duly and regularly sued out and issued from the district court of McLennan in suits by said several plaintiffs on their several debts against Eaton, Guinan & Co., the goods and property described in the several claimant's bonds were seized, and were, on the affidavits and bonds in the record, delivered by the sheriff to John F. Marshall, claimant; that said goods were a part of, and included in, the same conveyance to said Marshall by said deed of trust, and were of the values recited as the assessed values in said several bonds of claimants. (3) That the property conveyed by the said Eaton, Guinan & Co. to said John F. Marshall, trustee, and levied on by plaintiffs, was, up to the time of execution and delivery of said deed of trust, a stock of merchandise held and being disposed of by them as wholesale and jobbing merchants in Waco, Tex. (4) That said Eaton, Guinan & Co., and each and all the members of said firm, were at the time of the execution and delivery of said deed of trust wholly insolvent, and had no other property out of which plaintiffs could make their debts. (5) That said Eaton, Guinan & Co. were still and are so indebted to the several plaintiffs in the amounts of the judgments rendered in said several attachment suits against them, wherein said property was claimed by said Marshall, as follows: First. Steinwender, Stoffregen & Co. Judgment June 14, 1889, $4,564.80, and 8 per cent. per annum thereon from date. Second. Bank of California. Judgment for $6,784.56, June 10, 1889, with interest at 8 per cent. per annum from date. Third. Fairbanks Canning Company. Judgment for $1,092.54, June 3, 1889. Interest at 8 per cent. per annum from date. Fourth. William Numsen & Sons. Judgment in No. 4,859 for $1,747.60, and 8 per cent. per annum from date, dated June 10, 1889. Fifth. William Numsen & Sons. Judgment in No. 4,868 for $807.74, and 8 per cent. per annum from date, June 3, 1889. Sixth. Price & Lucas. Judgment for $875.16 on June 3, 1889, with 8 per cent. per annum from date. Seventh. Church & Co. Judgment for $974.03, October 11, 1889. Interest at 8 per cent. per annum from date. Eighth. Sweet Springs Milling Company. Judgment for $1,558 on June 3, 1889. Interest at 10 per cent. per annum from date, (which is entitled to a credit of $437.85 on date of judgment,) — in all which cases there was judgment for costs, which it is agreed shall be shown by the fee books, except in last case, in which costs were paid. It is admitted that in each of these cases judgment was rendered, foreclosing plaintiff's attachment lien on the property levied on, subject to the claim of said John F. Marshall. (6) It is agreed that the deed of trust, a copy of which is hereto attached, was executed and delivered to said John F. Marshall, and that possession of the property was delivered to him at the time of said delivery of the deed, which was immediately registered, properly, as a chattel mortgage, and that he was so in possession when the bonds of the several plaintiffs were made, and that he claims the title and possession of said property only by virtue of said conveyance. It is further agreed that the writs of attachment of the several plaintiffs were sued out at the time and for the amounts and levied as alleged in plaintiffs' tender of issues. (8) It is admitted and agreed that said Eaton, Guinan & Co. were, at and before the execution of the deed of trust by them to John F. Marshall, indebted to the several creditors therein named in the amounts therein recited, but this is without prejudice to the right of plaintiffs to assail the validity of said debts in any other suit.'"

"The state of Texas, McLennan county. Know all men by these presents, that we, John C. Eaton, Michael Guinan, and Walter A. Malin, of the city of Waco, McLennan county, state of Texas, are merchants and partners engaged in the wholesale grocery and provision trade in said city under the firm name Eaton, Guinan & Co., and said Walter A. Malin has always used in connection with said business the name of his wife, N. Malin, by reason of the first money put in as share in the capital stock of said firm being her separate means; but, by sales and investments of the proceeds of the commodities first purchased, said interest or right of property in said firm has become and now is the community property of said Walter A. Malin and N. Malin, said share being the share of said N. Malin. And we, John C. Eaton, Michael Guinan, and Walter A. Malin, composing said partnership or firm of Eaton, Guinan & Co., for and in consideration of one dollar to us in hand paid, and for the further considerations hereinafter stated, have bargained, sold, transferred, and conveyed and delivered, and do by these presents sell, transfer, convey, and deliver, to John F. Marshall, of the city of Waco, McLennan county, Texas, all our goods, wares, merchandise, and commodities which usually constitute a stock of wholesale groceries, and everything now constituting our stock in trade, of every kind, which are in the storehouse or place of business now occupied by us, situated on South Fourth street, in said city of Waco, and all our office furniture, safe, showcases, scales for weighing, and every thing or implement used by us in connection with said business, which...