Byrd v. Perry

• Decision Date: 23 May 1894
• Docket Number: (No. 829.)
• Parties: BYRD et al. v. PERRY et al.
• Court: Texas Court of Appeals

26 S.W. 749

BYRD et al. v. PERRY et al.

(No. 829.)

Court of Civil Appeals of Texas.

May 23, 1894.

Appeal from district court, Hamilton county; W. M. Sleeper, Judge.

Action by W. R. Byrd and others against Perry and Maxwell. From a judgment for defendants, plaintiffs appeal. Affirmed.

Appellees brought this suit against appellant Byrd and the sureties on his official bond as sheriff of Hamilton county, and J. Shapera & Co. and the sureties on an indemnity bond executed by them, to recover the value of certain goods and merchandise seized and levied upon by Byrd under a writ of attachment in favor of said Shapera & Co. against S. R. Scogin. Appellees claim title to the property under an alleged mortgage or trust deed executed by S. R. Scogin prior to the levy of the attachment. Appellants charged that the alleged mortgage was made in fraud of S. R. Scogin's creditors; that it was not a mortgage, but a partial assignment, and void; and that the parties to said instrument contemplated that the grantor should remain in possession and control of the property, in violation of the statute regulating assignments. A trial before the court without a jury resulted in a judgment for appellees.

The court below filed the following conclusions of fact: "(1) That on and prior to the 16th day of October, 1891, the firm of M. J. Hearne & Co. were engaged in, and carrying on, a general merchandise business in the town of Hamilton, Hamilton county, Texas. (2) That said firm of M. J. Hearne & Co. was composed of S. R. Scogin and John L. Spurlin, the said Spurlin having the sole and exclusive management and control of the same. (3) That on the 16th day of October, 1891, the said firm of M. J. Hearne & Co. and the individual members thereof were insolvent. (4) That on said 16th day of October, 1891, the said S. R. Scogin executed a deed of trust in the nature of a mortgage to plaintiffs, George F. Perry and William Maxwell, as trustees, conveying the property in controversy in this suit to them to secure John D. Rogers & Co., of Galveston, Texas, and other creditors of said firm of M. J. Hearne & Co. therein mentioned, in the payment of certain debts described in said deed of trust owed by said M. J. Hearne & Co. to said John D. Rogers & Co. and said other creditors; said deed of trust reciting that said S. R. Scogin was doing business in Hamilton, Texas, under the name and style of M. J. Hearne & Co., and that she was the sole owner and constituent of said styled business, and that she executed said instrument for herself, and for her said business operated under said business style; and reciting, also, that the indebtedness listed therein was due by her, and that said accounts and notes were incurred by her and made by her in the style name of M. J. Hearne & Co., except the A. H. Watson note, which is in the name of S. R. Scogin; and reciting that said deed of trust is executed for the purpose of assuring, securing, and paying off said indebtedness described therein. The trustees are authorized to take immediate possession of the property, and sell the same for cash, and pay off said indebtedness, in the order provided therein, as fast as sales can be made from the proceeds of said sales; and it is further provided that said instrument is intended as a mortgage to secure the payment of the claims and debts as therein named, in the order and manner as named, and to indemnify said above-named creditors, and for the purpose, as a mortgage, to as fully protect, secure, and indemnify each and every one of the sureties therein named on each and every note therein set out, and save them entirely harmless against loss or damage on account of their liability thereon, as the same is made to the payee of each and every one notes, and is fully intended as such mortgage to assure, secure, provide, and furnish a fund for the benefit of all said sureties out of which debts may be paid, and shall in all respects, for said purposes, inure to their benefit, as before stated, without reference to the acceptance of said instrument as security by any payee of any of said notes; and, lastly, it is provided that when a sufficient quantity of said goods and property to pay off and fully discharge the debts therein secured, and also the expenses of executing the mortgage, have been sold, the remainder shall be the property of said S. R. Scogin, and shall be returned to her. The said instrument was signed by John L. Spurlin and C. E. Horton as witnesses. Besides the property conveyed, the firm owned, at the time, a large amount of property in cotton, sheep, and lands; and S. R. Scogin owned considerable in money, and J. L. Spurlin $1,000 in bank stock. (5) That, on the day before the execution of said deed of trust by said S. R. Scogin, the said trustees therein, George F. Perry and William Maxwell, were requested by the attorney of Mrs. S. R. Scogin, who prepared the same, to act as such trustees in said instrument, and agreed to do so; that said deed of trust was prepared and submitted to said trustees on the afternoon of October 16, 1891, and that it was signed by said Mrs. S. R. Scogin in the afternoon of said day, and delivered to her attorney, G. H. Goodson, who filed same for registration at eight minutes after 4 o'clock in the afternoon of October 16, 1891, in the office of the clerk of the county court of Hamilton county; and that said G. H. Goodson, shortly after said instrument was so filed, notified said trustees, George F. Perry and William Maxwell, and that said trustees immediately thereafter took possession of the property described in said deed of trust and conveyed thereby, and that said possession was so taken about sundown on said day; and that, between the time of filing said deed of trust and the taking possession by the trustees, said S. R. Scogin and J. L. Spurlin remained in complete possession and control of the business and goods of M. J. Hearne & Co. conveyed by the deed of trust, and sold some of said goods in course of business, and collected the proceeds of said sales, and did not deliver the same to the trustees, but converted them to their own use. (6) That the said above-described deed of trust was executed by said S. R. Scogin in fraud of her creditors; but neither the accepting creditors provided for therein nor said trustees had notice thereof, and did not participate in the same. (7) That the debts secured by said deed of trust, and described therein, are and were all actual, valid, and bona fide debts of the said S. R. Scogin and the said firm of M. J. Hearne & Co., except the said debt of A. H. Watson, which was due by said S. R. Scogin alone. (8) That all of the creditors mentioned in said deed of trust accepted the same before the levy of the writ of attachment under which the goods described in plaintiffs' petition were seized by defendant W. R. Byrd, sheriff, under writ of attachment. (9) That, when S. R. Scogin executed said deed of trust, she, J. L. Spurlin, and the firm of M. J. Hearne & Co. were insolvent, and neither she nor said Spurlin hoped, expected, or intended to redeem said goods and property conveyed by said deed of trust. (10) I find that the defendant W. R. Byrd, as sheriff of Hamilton county, acting under a writ of attachment issued out of the district court of Hamilton county against S. R. Scogin in favor of the defendants J. Shapera & Co., did, at the request and instance of said defendants J. Shapera & Co., seize and convert said goods, taking the same out of plaintiffs' possession, without their consent, on the 18th day of October, 1891, and that the said goods were of value of $1,030 in Hamilton, Texas, the place where they were so seized, at the date of said seizure. (11) I find that the official bondsmen of said sheriff on the date of said seizure were A. L. Phillips, R. Y. Cox, T. J. Hubbert, and Joel Fisher, and that said defendants J. Shapera & Co., before the levy of said writ of attachment, executed to said sheriff, W. R. Byrd, an indemnifying bond with sureties as set out in plaintiffs' petition."

We do not find in the statement of facts any evidence supporting that part of the foregoing findings which states that one of the debts secured by the conveyance executed by Mrs. S. R. Scogin October 16, 1891, was her individual debt, and not a partnership liability. Said conveyance is not copied in either the court's findings or the statement of facts, and the statement in the findings that one of the debts secured was Mrs. Scogin's individual note to A. H. Watson does not correspond with the recitals of the substance of said conveyance embraced in the statement of facts. With this qualification, the foregoing findings are supported by the evidence, and adopted by this court.

The testimony shows the following, which we add as supplemental findings of fact: (1) J. L. Spurlin, found by the court to be a member of the firm of M. J. Hearne & Co., procured, advised, and consented to the execution of the trust conveyance executed by Mrs. S. R. Scogin October 16, 1891. (2) Said conveyance is described in the statement of facts as follows: It recites that S. R. Scogin, doing business under the name and style of M. J. Hearne & Co., and being sole owner and constituent of said business, and executing said instrument for herself and her said business, in consideration of $10 conveyed to George F. Perry and William Maxwell all her stock of general merchandise, consisting of dry goods, groceries, hardware, farming implements, agricultural machinery, barbed fencing wire, wagons, etc., owned and controlled by her under said style...