Cleveland v. Empire Mills

• Decision Date: 14 February 1894
• Citation: 25 S.W. 1055
• Parties: CLEVELAND v. EMPIRE MILLS et al.
• Court: Texas Court of Appeals

25 S.W. 1055

CLEVELAND v. EMPIRE MILLS et al.

Court of Civil Appeals of Texas.

February 14, 1894.

Appeal from district court, Dallas county; R. E. Burke, Judge.

Action by George W. Cleveland against the Empire Mills and others. From a judgment for defendants, plaintiff appeals. Reversed.

Leake, Shepard & Miller, for appellant.

RAINEY, J.

This suit was brought by appellant against the Empire Mills and W. H. Lewis, sheriff of Dallas county, to recover damages for the wrongful conversion of certain property claimed to be conveyed to said Cleveland by one A. Ludwig, in trust for the benefit of certain creditors of said Ludwig. Appellee the Empire Mills brought suit against said Ludwig, and caused an attachment to issue, which was levied on said property by said Lewis, sheriff. Appellees plead that said conveyance was fraudulent as to creditors; that said property remained in the possession of Ludwig after the execution of the conveyance by virtue of an understanding between said Ludwig and said Cleveland at the time of the execution of said conveyance; and that said conveyance was never deposited for registration, nor registered in accordance with law, and they never had notice of same. A trial was had before a jury, and judgment rendered for appellees, from which said Cleveland has appealed.

The first error assigned complains of that portion of the court's charge which is as follows: "You are told that, under the law as applicable to the filing and recording of chattel mortgages, the chattel mortgage made by Ludwig to Cleveland, in evidence, not having been filed and indexed or recorded, as required by law, is void as to other creditors as a chattel mortgage." Cleveland testified that, on the day the conveyance was executed, he deposited the same with the county clerk of Dallas county for the purpose of registration, and that he intended the clerk to have it recorded at once. The copy of the conveyance read in evidence showed that it had been filed for record at 12:35 o'clock on the day of its execution by a deputy of the county clerk of Dallas county. The said conveyance was recorded in record of trust deeds in which land mortgages are recorded. This evidence shows conclusively that the instrument was filed or deposited for record, there being none to the contrary. The charge of the court then raised the question: Is the depositing with the clerk a chattel mortgage for record sufficient to secure the lien given therein, or is it necessary, as against others, that it be indexed or recorded by the clerk? Article 3190b, Sayles' Civ. St. Tex., says that such mortgages, "where the possession of the property mortgaged is not changed, shall be absolutely void as against the creditor of the mortgagor or person making same, and as against subsequent purchasers and mortgagees or lien holders in good faith, unless such instrument, or a true copy thereof, shall be forthwith deposited with, and filed in the office of, the county clerk of the county where the property shall then be situated." This much was done by the trustee in this case, and his rights cannot be affected by the failure of the county clerk to do his duty. "When the mortgage was thus deposited and filed, the duty of the mortgagee as to protecting creditors of the mortgagor and purchasers and lien holders claiming under him ceased, and he was not bound to see that the clerk performed his duty in making the entries and index required by the statute. Notice dates from the time the mortgage is filed, and not from the time the index and entries are made." Friberg v. Magale, 70 Tex. 116, 7 S. W. 684. Under the facts of this case, the charge was erroneous, and should not have been given.

The second assignment complains of that portion of the court's charge which is as follows: "If, however, from the evidence, you find that, at the time, the mortgage was not executed in good faith, or if you find that Cleveland went into possession of the stock of groceries for the purpose of selling the same out in the ordinary course of a retail dealer in trade, or if, from the evidence, you believe that, at the time the mortgage was executed, it was understood between Cleveland and Ludwig that Ludwig should continue in charge of the stock, and sell it out in the usual and ordinary manner and course of a retail dealer, then,...