Bell v. Arledge

• Citation: 192 F. 837
• Decision Date: 23 January 1912
• Docket Number: 2,055.
• Parties: BELL et al. v. ARLEDGE et al.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

192 F. 837

BELL et al. v. ARLEDGE et al.

No. 2,055.

United States Court of Appeals, Fifth Circuit.

January 23, 1912

Newton C. Abbott, for appellants.

W. L Hill and O. T. Holt, for appellees.

Before PARDEE and SHELBY, Circuit Judges, and GRUBB, District Judge.

PARDEE Circuit Judge.

January 3, 1908, the Long Leaf Lumber Company, engaged in the general sawmill business, was adjudged a bankrupt. In September 1906, when the bankrupt commenced business, it purchased from L. D. Menefee and W. A. Bell its entire plant, consisting of all the timber, timber lands, mill, dwelling houses, and other property of which it was possessed at the time of the decree in bankruptcy. In making such purchase only a portion of the purchase price was paid, and a vendor's lien was retained and deed of trust given by the bankrupt to secure the payment of the balance of the purchase price.

While the bankrupt carried on business, appellee Stone was employed as a messenger and bookkeeper, and at the date of the adjudication in bankruptcy claimed to be entitled to $789.35 for wages, for which he claims a laborer's lien upon the property of the bankrupt. $300 was paid by the referee, and this claim was thus reduced to $489.35.

Appellee Watts worked for the bankrupt as a shipping clerk and lumber checker, and at the date of the adjudication claimed as due to him $290 for wages, for which he claimed a laborer's lien upon the property of the bankrupt. His claim has been paid except $141.05.

Appellees Holland & Weisinger were merchants located near the mill and, during the time the lumber company was a going concern by agreement with the bankrupt were supplying commissaries to the millmen, taking in payment orders or time checks issued by the bankrupt, and they claimed an indebtedness of $1,708.60 arising from the payment of orders and the taking up of time checks, and they claimed as assignee and subrogee of undisclosed laborers' liens a lien on all the property of the bankrupt for the payment of the same.

Bell and Menefee, holders of the deed of trust claiming a vendor's lien, proved their debts reserving their rights under the vendor's lien and deed of trust, and thereafter applied for the sale of all the mortgaged property of the Long Leaf Lumber Company for the satisfaction of their claims, and, in furtherance of such sale, entered through their counsel into the following agreement, to wit:

'State of Texas, County of Harris.

'This agreement witnesseth:

'That W. L. Hill presents a number of the creditors of the Long Leaf Lumber Company, bankrupt, claiming to have laborers' liens upon the property of the Long Leaf Lumber Company for labor performed, and that said liens arise and are fixed by the labor performed, and that said liens arise and are fixed by the law. I. M. standifer represents L. B. Menefee and W. A. Bell, who claim to have a mortgage on all the property of the Long Leaf Lumber Company upon which W. L. Hill claims the laborers' liens apply. The mortgage creditors L. B. Menefee and W. A. Bell have applied for the sale of all the mortgaged property of the Long Leaf Lumber Company for satisfaction of their debts.

'Now, therefore, it is agreed between I. M. Standifer representing L. B. Menefee and W. A. Bell, and W. L. Hill representing certain creditors claiming to have laborers' liens, that the property upon which the mortgage is claimed to exist may be sold under the application of L. B. Menefee and W. A. Bell, and that the liens of the creditors represented by W. L. Hill shall attach to the proceeds of the sale of the property sold, if such liens exist, and shall be paid off and discharged by said Menefee and Bell, if the courts shall so adjudge, and that the persons represented by W. L. Hill shall in no wise be prejudiced as to their lien or the payment of any lien established by them by virtue of the sale of the property under the application pending, but that said Menefee and Bell will pay off and discharge any final judgment which may be rendered in favor of W. L. Hill's clients against the Long Leaf Lumber Company in which a lien or liens may be held to exist in their favor upon or against said property.

(Signed) W. L. Hill, 'I. M. Standifer.'

Upon a hearing before the referee the claims of appellees Watts and Stone and Holland & Weisinger were allowed by the referee, and by him adjudged to be liens upon the property of the bankrupt, and gave a judgment against Bell and Menefee directing them to pay the same.

Exceptions being filed to the findings of the referee, the matter was brought before the District Court, where, on hearing, the exceptions to the findings of the referee were overruled, and the referee's findings were in all things confirmed and approved. Bell and Menefee sued out this appeal with detailed assignments of error, denying and disputing the claimed liens of Stone and Watts and Holland & Weisinger.

A motion is made to dismiss this appeal on the ground that no appeal lies under the statute, and that appellants' remedy, if they had any in this court, was by petition to revise.

This court ruled adversely to such contention in Roche-Smith v. Mortgage & Debenture Co., 101 F. 956, 42 C.C.A. 115.

As to the right of appellee Stone and appellee Watts to the lien they claim, we agree with the referee, and we concur in his conclusion of law and argument thereon. As to whether these liens are prior to the vendor's lien of Bell and Menefee, it is not necessary to inquire, in view of the agreement between the parties hereinbefore fully given.

As to Holland & Weisinger the case is different. In their first claim Holland & Weisinger proved their debt for goods, wares, merchandise, and money advanced to the bankrupt in the sum of $1,708.66, claiming, however, no lien, but asserting security as follows: The bankrupt sold 1,100,000 feet of lumber to L. M. Matthews with the condition that the proceeds should be applied to the payment of this claim. The account stated in the proof of debt is as follows:

Long Leaf Lumber Co., to Holland & Weisinger: Nov. 1. Balance ................................................. $1,123 23 Nov. 1- 5. Suit, $15.00; files, $1.00; 20 chops, $31.00 ................ 48 00 Nov. 1- 5. Order P., $15.70; fruit, $5.05; chops, $132.55 ............. 153 30 Nov. 1- 5. Syrup, $1.00; shells, 50 cents ............................... 1 50 Nov. 6-15. Tobacco, 95 cents; coffee, $3.00; tobacco, $1.20 ............. 5 15 Nov. 6-15. Lard, $6.30; flour, $5.60; meal, $2.60 ...................... 14 50 Nov. 6-15. Ham, $7.85; shoes, $1.40; pants, $1.50 ...................... 10 75 Nov. 6-15. Shoes, $3.75; overalls, $2.00; syrup, $1.00 .................. 6 75 Nov. 6-15. Onions, 50 cents; hose, 25 cents; chops, $1.60 ............... 2 35 Nov. 5-15. Shoes, $3.25; plaids, $1.50; flannell, $1.00 ................. 5 75 Nov. 6-15. Snuff, 60 cents; gloves, $2.30; outing, $1.50 ................ 4 40 Nov. 6-15. Shoes, $4.00; shoes, $3.00; shoes, $3.00 .................... 10 00 Nov. 5-15. Shoes, $2.50; shells, $1.50; meal, $3.25 ..................... 7 25 Nov. 5-15. Shoes, $2.55; underwear, $2.00; bacon, $1.10 ................. 5 65 Nov. 6-15. Merchandise, D. A. S., $10.00; thread, 25 cents; tobacco, $1.00 .............................................. 11 25 Nov. 6-15. Merchandise, P. R., $11.25; merchandise, Simmons, $7.50 ..... 18 75 Nov. 6-15. Merchandise, W. H., $10.00; merchandise, Tom C., $13.50 ...................................................... 23 50 Nov. 6-15. Checks, pay rolls, $8.25; Phillip Stewart, $11.25 ........... 19 50 Nov. 6-15. Bill Jackson. Time, $16.85; checks, $205.55 ................ 222 40 --------- $1,693 98 Eight per cent. interest per agreement, T. W. Ford, from December 1, 1907 ..................................................... 14 68 --------- Total .............................................. $1,708 66

Three months later they filed another proof of debt for goods, wares, and merchandise advanced to said bankrupts and to laborers at and about the sawmill of said bankrupt in the sum of $1,713.59. In this proof of debt the security on the sale of 1,100,000 feet of lumber is retained; but, in addition thereto, 'affiant claims a laborer's lien under the laws of Texas.'

The account accompanying this proof of debt is a detailed one running from July 1, 1907, for merchandise of various kinds, charged on different days, with no mention whatever of names until the items entered on November 15th to November 23d, where the following appears:

Nov. "15/23" To Mdse., P. Randel, $11.25 ...... $11 25 " " " Mdse., Simmons, $7.50 ............ 7 50 " " " Mdse., Will Hawkins, $10 ........ 10 00 " " " Bill Jackson, time, $16.85 ...... 16 85 " " " Mdse., Tom McCarthy, $13.50 ..... 13 50 " " " Phillip Stewart, time,

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