Brothers v. Mundell, Munzesheimer & Co.

• Decision Date: 26 October 1883
• Docket Number: Case No. 1514.
• Citation: 60 Tex. 240
• Court: Texas Supreme Court
• Parties: J. F. BROTHERS v. MUNDELL, MUNZESHEIMER & CO.

60 Tex. 240

J. F. BROTHERS

v.MUNDELL, MUNZESHEIMER & CO.

Case No. 1514.

Supreme Court of Texas.

Oct. 26, 1883.

APPEAL from Cass. Tried below before the Hon. B. T. Estes.

On the 31st of December, 1881, Mundell, Munzesheimer & Co. filed their petition in the district court of Cass county, upon an open account against John F. Brothers, in which they claimed that there was due them the sum of $615.63, for goods sold to defendant. On the same day plaintiff filed his affidavit and bond for a writ of attachment against Brothers, which was issued, and in January, 1882, was levied on a stock of goods of John F. Brothers. On the 23d January, 1882, Henry Dennis, the intervenor, filed his original petition against John F. Brothers upon a note made by John F. Brothers on the 10th of January, 1881, to him, for the sum of $2,960, borrowed money, the same bearing a credit of $586.44. Dennis also filed a mortgage attached to his petition, under which he claimed a lien upon the goods attached to secure the payment of his note. Dennis prayed for a writ of sequestration for the goods, for a foreclosure of his deed of trust and for judgment and for sale of goods, etc. At the February term Henry Dennis obtained judgment against Brothers for the amount claimed in his petition, with a foreclosure of his mortgage and order of sale of the stock of goods in question. In March, 1882, the goods were sold by the sheriff under that order, and Dennis bought them. The amount bid was appropriated to the payment of the debt of Dennis and the satisfaction of his mortgage. On the 5th day of September, 1882, Dennis filed his plea of intervention in this suit. On the 12th day of September, 1883, the cause came on for trial, and after the pleadings of the respective parties were presented and the evidence of plaintiff and defendant heard, the intervenor offered his mortgage, his judgment against Brothers, and order of sale, with return of sheriff showing the sale of the goods and purchase by intervenor; when plaintiff objected to the reading of the record for the reason that the chattel mortgage had not been recorded as required by law for the recording of chattel mortgages, but that the same had been recorded in the record book for deeds. The objection was sustained, and the mortgage, judgment and order of sale, with sheriff's return thereon, were excluded. Judgment rendered by the court for plaintiff against defendant for amount of plaintiff's claim.

J. H. Henderson, for appellant, cited: Culbertson v. Cabeen, 29 Tex., 255;46 Tex., 35;57 Tex., 48, 152;55 Tex., 308;4 Tex., 42; 2 Greenleaf on Ev., 367.

Todd & Hudgins, for appellee, cited: Rev. Stat., App., pp. 15, 16; Peiser v. Peticolas, 50 Tex., 638;Robinson v. Elliott, 22 Wall., 513; Jones on Ch. Mort., §§ 263, 264, 266, 268, 279, 314-318; Carter v Carter, 36 Tex., 693;Meyberg v. Steagall, 51 Tex., 351;Pool v. Sanford, 52 Tex., 621;Rodrigues v. Trevino, 54 Tex., 198;Ryan v. Goldfrank, 58 Tex., 356.

O'Neil & Son, for intervenor.

WEST, ASSOCIATE JUSTICE.

The errors assigned by the appellant Brothers are not sufficient to require a reversal of the judgment below. The question as to whether or not he had, after arriving at full age, unconditionally affirmed the contract of purchase made with the appellees during his minority, was submitted to the jury upon conflicting testimony, and they having found this fact against Brothers, their verdict will not for this reason be disturbed.

The bill of exceptions taken to the ruling of the court rejecting the testimony as to damages offered by Brothers does not inform us what that testimony was, so that we can tell whether or not it conformed to his pleadings upon this subject. It merely says that “the defendant offered evidence to prove actual and exemplary damages, to which plaintiffs objected, because there were no allegations in defendant's answer sufficient to admit such evidence.” The inference from this is that the proof offered did not correspond with the allegations made; and as the defendant has not informed us of the nature of his proof, we must presume that the court rejected it for that reason. Without deciding as to whether or not any proof of this character was admissible under his pleas, we do hold that the bill of exceptions points out no error whatever in the rejection of the evidence.

The intervenor's assignments of error involve some important questions under the act concerning chattel mortgages of April 22, 1879. R. S., App., p. 15.

He offered in evidence a mortgage upon the stock of goods in controversy made to him by the defendant previous to the levy of the attachment, which mortgage had been foreclosed by suit, and the intervenor had become the purchaser of the goods at the sheriff's sale made under the judgment rendered in the foreclosure proceedings. The plaintiff in this cause was not a party to those proceedings, and was not bound by the judgment rendered therein; and hence it became necessary for the intervenor to establish the validity of his mortgage in the present suit. This mortgage upon exception was ruled out by the court below, as were all the subsequent proceedings had in the foreclosure suit, and a bill of exceptions to the action of the court was saved by the intervenor. The reasons for the rejection of the mortgage, as we gather from the bill of exceptions and the points relied on by counsel in their briefs, were that neither the mortgage nor a copy of it had been deposited with and filed in the office of the county clerk as required by the first section of the act of April 22, 1879. It was also objected that the county clerk had not entered a minute of this instrument in the appropriate book as provided by the fourth section of the statute, but had recorded it at length in the book provided for the registration of deeds as was required by law previous to the adoption of the above statute. The mortgagor continued in possession of the goods from the date of the execution of the mortgage down to the date of levying the attachment.

It was the clear intention of the statute to do away with the registration in full of chattel mortgages, and to substitute instead of it the deposit with the clerk of the original mortgage itself or a true copy of it, there to be kept for the inspection of parties interested; and to have a minute of the mortgage entered in a book, so that it might be perceived at a glance what were its contents and provisions, date of filing, etc. As to what effect the failure of the clerk to make the proper entry in such book would have upon the rights of the parties to the mortgage when it was properly filed, we deem it unnecessary to decide in the case before us. The questions which we feel called upon to determine are: 1. Was the present mortgage deposited with and filed by the clerk as contemplated by the statute? and 2. If not, was it admissible in evidence to show that the mortgagee held an interest in the property described in it?

The evidence of deposit and filing offered by the intervenor was the indorsement upon the original mortgage, and the certificate of the clerk attached to it, both of which were to the effect that the instrument had been filed for record upon a certain day; and the certificate contained the additional statement that it had been recorded in the record book of deeds.

Proof of the filing was not made by a certified copy as provided in the third section of the statute. Admitting...