Crow, Hargadine & Co. v. Red River Cnty. Bank
| Decision Date | 12 December 1879 |
| Citation | 52 Tex. 362 |
| Court | Texas Supreme Court |
| Parties | CROW, HARGADINE & CO. ET AL. v. RED RIVER COUNTY BANK. |
APPEAL from Red River. Tried below before the Hon. Joseph Bledsoe.
Suit was instituted in the District Court of Red River county on October 25, 1877, by the Red River County Bank, a corporation incorporated on September 24, 1874, under an act of the Legislature of April 23, 1874, against W. T. & George W. Voiers, T. H. Young, J. L. Bryarly & Co., Crow, Hargadine & Co., Gilkerson & Gloss, Rodner D. Wells & Co., Heidenheimer & Bros., and a number of other defendants, on three promissory notes for $400 each.
Plaintiff alleged that the bank was the owner of the notes; that they were executed by W. T. & George W. Voiers to T. H. Young, and at the same time a mortgage was executed on a stock of goods at Annona and at Dalby Springs to secure their payment; that Young indorsed the notes to appellee; that on October 10, 1877, W. T. & George W. Voiers made an assignment of the goods mortgaged to J. T. Fleming; that Fleming had taken possession of them, and averring fraud, the invalidity, &c., of the assignment; that on or about October 10, 1877, Crow, Hargadine & Co. and other creditors named sued out attachments in the County and Justices' Courts of Red River county in their favor against W. T. & George W. Voiers, and had them levied on by the sheriffs named upon the goods mortgaged, and that the other creditors named of W. T. & George W. Voiers who had not attached had threatened to do so, and were then preparing their papers. Plaintiff set up its lien by virtue of the mortgage; that the goods were liable to waste by being tied up in complicated litigation, and that the security for the debt would be lost, &c. Plaintiff prayed for a writ of injunction against all of the defendants, and asked that a receiver be appointed.
On October 24 the court granted the injunction, fixed the bond, and appointed a receiver.
The assignee set up the following defenses: General and special demurrer, general denial, and special answer attacking the mortgage for fraud, insufficiency, &c., and averring the good faith and validity of the assignment, and moved to dissolve the injunction and sustain the assignment.
The attaching creditors set up the following defenses: (1) Plea to the jurisdiction of the court; (2) general and special demurrer; (3) general denial; (4) special answer--averring fraud in the mortgage, the relations of Voiers and Young to the appellee, the excessive amounts of goods mortgaged; that the possession remained in the mortgagors, &c.; and moved to dissolve the injunction.
Appellants also demurred generally and specially to the assignee's answer, and averred fraud and invalidity in the assignment. The court dissolved the injunction.
On November 27 the appellee amended the petition and moved to reinstate the injunction.
On December 13 the appellants amended their answer, setting up that they had instituted suits in the County and Justices' Courts; that the injunction had been dissolved, and asked that the receiver be ordered to turn over the proceeds of the goods, &c.
J. H. McLean, W. H. Bagby & Co., and E. H. Britton inter vened, and claimed a portion of the goods in the hands of defendants Voiers to be sold on commission. A jury was waived, the cause submitted to the court, and judgment ren dered for appellee for the amount of the debts against W. T. & George W. Voiers and Young, foreclosing the mortgage on the goods, ordering the receiver to pay over the proceeds to appellee, giving judgment in favor of the intervenors for their amount of goods sold by the receiver, and reinstating and perpetuating the injunction.
The appellants Crow, Hargadine & Co., Gilkerson & Gloss, and Claflin, Allen & Co., moved for new trial, excepted to the rulings of the court, assigned errors, and appealed.
G. T. & C. S. Todd, for appellants.--The original briefs filed by appellants' counsel have not been received, but in a supplemental brief, after obtaining leave to cite additional authorities, they cited Peiser v. Peticolas, 50 Tex., 638.
Sims & McDonald, for appellee.
I. The mortgage, as executed, was a valid legal instrument in law and in fact, because (1) the consideration for the mortgage was Voiers' indebtedness to the bank for $1,200; (2) Young was an accommodation indorser; (3) the mortgagors considered themselves solvent at the execution of the mortgage, but not at the execution of the assignment and when the goods were attached; (4) there was no pressing indebtedness at the time of the execution of the mortgage except the bank debt; (5) the property mortgaged, under the circumstances, was not excessive in amount; (6) the mortgage was not given on all the property of mortgagors, George W. Voiers having real estate, bank stock, and personal effects not included; (7) the goods, &c., were left in the hands of W. T. Voiers, as the agent and clerk of the bank, to sell and pay the proceeds to the bank; (8) the account was kept, and the proceeds of the goods sold were paid to the bank; (9) the court deducted the amount of goods sold from appellee's claim; (10) the mortgage was made in good faith to secure the bank, and not to hinder, delay, or defraud creditors; (11) the goods added were to fill up the stock--were a separate transaction; the goods were not mixed, and were settled for by W. T. Voiers with the parties from whom they were purchased.
II. Injunction was the proper remedy. (Click v. Stewart, 36 Tex., 280; High on Injunc., arts. 12, 25; Crews v. Burcham, 1 Black, 352.)
III. If the goods had remained in the hands of the assignee and been sold, or had the sheriff been permitted to sell them by piecemeal, appellee would have been remediless.
IV. The mortgagors had the right to prefer a creditor (Van Hook v. Walton, 28 Tex., 76;Baldwin v. Peet, 22 Tex., 716; Burrill on Assign., pp. 88, 89.)
V. This was a proper case for the appointment of a receiver. (Shulte v. Hoffman, 18 Tex., 681;Davis v. Gray, 16 Wall., 218; Edwards on Receivers in Chancery, pp. 64, 182.)
We are of the opinion that the plea to the jurisdiction of the District Court was not well taken. This court, and not the County Court, had jurisdiction of the demand of appellee, the Red River County Bank, the amount of the principal being $1,200.
The petition of the bank alleged that the property mortgaged to secure this debt had been seized under writs of attachment from the County Court, which were subordinate to the lien of the mortgage; that the same was liable to waste, &c. The bank could not intervene in the attachment suits for want of jurisdiction in the County Court over its claim, and was virtually remediless unless the jurisdiction of the District Court could be invoked and the other creditors be restrained from further proceedings under their attachments until the respective rights of all the parties could be ascertained. This was sought to be effected by the suit in the District Court, in which all the creditors were made parties, and the property protected by the appointment of a receiver.
This jurisdiction is analogous to that exercised by a court of chancery,...
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