Blythe v. Crump

• Decision Date: 15 February 1902
• Parties: BLYTHE v. CRUMP et al.
• Court: Texas Court of Appeals

66 S.W. 885

BLYTHE v. CRUMP et al.

Court of Civil Appeals of Texas.

February 15, 1902.

Appeal from Bowie county court; A. S. Watlington, Judge.

Action by Crump Bros. against S. Vandiver to foreclose a chattel mortgage, in which A. S. Blythe filed a claim of ownership to the property From a judgment in favor of the plaintiffs, Blythe appeals. Reversed.

J. Q. Mahaffey, for appellant. H. W. Vaughan, for appellees.

TEMPLETON, J.

On April 2, 1898, W. W. Shuptrine sold two mares to Sam Vandiver for $160. The sale was on credit, and Vandiver executed his note for the purchase price, and secured same by a mortgage on the mares. The transaction took place in Miller county, Ark., where the mares were situated, and where Shuptrine and Vandiver resided. The mortgage was duly registered in said state and county on January 16, 1899, but was never registered in Texas. In the latter part of February, 1899, Vandiver came to Bowie county, Tex., looking for work. He brought the mares with him, with the knowledge and consent of Shuptrine. He applied to Crump Bros. for a job, and on March 4, 1899, contracted with them to make and haul railroad ties; they agreeing to furnish him with supplies during the term of the contract. He gave a mortgage on said mares to secure the money to be advanced and the supplies to be furnished, and the mortgage was promptly registered in Bowie county, where the mares were, and where the work was to be done. Crump Bros. had no notice at that time of Shuptrine's mortgage, but learned of the same soon afterwards. Under the said contract Crump Bros. advanced and furnished to Vandiver money and supplies to the amount of $358.29, of which amount the sum of $161.54 was advanced after June 21, 1899. Vandiver paid on said account the sum of $140.36 on July 21, 1899, and $115 on September 4, 1899; leaving a balance of $102.91, which is still unpaid. Shuptrine's debt not having been paid, he brought suit thereon against Vandiver in Bowie county, Tex., on June 21, 1899. He sought a foreclosure of his mortgage, and caused a writ of sequestration to be issued and levied on the said mares. Vandiver replevied the mares, the sureties on the replevy bond being procured and indemnified by Crump Bros. The suit is still pending. About September 1, 1899, Vandiver delivered the mares to Shuptrine in consideration of $20 cash and a credit of $160 on the debt he was owing to Shuptrine. The mares were immediately taken by Shuptrine to Arkansas, without the knowledge or consent of Crump Bros., and there sold to A. S. Blythe on September 9, 1899, in consideration of three notes,—two for $50 each, and one for $60,—due, respectively, in 30, 60, and 90 days. The notes were negotiable, and were transferred to a bank, and have been paid to the bank by Blythe. At the time he bought the mares, Blythe did not know of the mortgage to Crump Bros.; but the jury found he had knowledge of sufficient facts to put him upon inquiry as to the title to said property, which would have led to a discovery on his part of the said mortgage. On September 12, 1899, Crump Bros. brought suit in a justice's court in Bowie county, Tex., against Vandiver on the balance owing by him to them. The suit was to foreclose the mortgage, and they caused the said mares to be seized under a writ of sequestration. On the next day Blythe filed his affidavit and claim bond, asserting title to the mares, which were thereupon turned over to him. Crump Bros. prosecuted their suit against Vandiver to judgment, a foreclosure of their mortgage being secured. They also recovered judgment in the justice's court against Blythe in the claim case, and he appealed to the county court. A trial there resulted in another judgment for Crump Bros., and Blythe has appealed to this court.

The appellant insists that the finding of the jury that he had constructive notice of the Crump Bros. mortgage was not warranted by the evidence. An examination of the statement of facts shows that the evidence upon this point is not very convincing. However, there is evidence tending to show that an ordinarily prudent man would have been excited to...