Freiberg v. Magale
| Decision Date | 24 February 1888 |
| Citation | 7 S.W. 684 |
| Parties | FREIBERG <I>et al.</I> v. MAGALE. |
| Court | Texas Supreme Court |
Appeal from district court, Galveston county; W. H. STEWART, Judge.
Action by Freiberg, Klein & Co. against S. J. Flannigan and W. S. Davidson, partners under the firm name of "J. F. Magale," for the conversion of certain personal property. The case was dismissed on the ground that plaintiffs' petition stated no cause of action. Plaintiffs appeal.
Scott & Levi, for appellants. Davis & Davidson and F. D. Minor, for appellee.
Appellants sued S. J. Flannigan and W. S. Davidson, partners under the firm name of "J. F. Magale," to recover the value of certain personal property alleged to belong to the appellants, and to have been converted by the appellees to their own use. Demurrers were sustained to the petition below, and, the plaintiffs having declined to amend, the cause was dismissed. The plaintiffs appealed to this court. The petition alleged that T. J. Owens, being indebted to plaintiffs in the sum of $1,750, gave his note therefor, dated March 29, 1883, payable September 1, 1883, and at the same time executed a mortgage upon the property in controversy to secure its payment, as well as the payment of any other indebtedness that might thereafter accrue from Owens to the plaintiffs by reason of the sale of merchandise, or in any other manner; said mortgage to continue in force till canceled in writing by the plaintiffs. A copy of the mortgage was made an exhibit to the petition. It was further alleged that the original mortgage was filed March 30, 1883, with the county clerk of Galveston county, to be kept among the chattel mortgages. After the execution of the mortgage, Owens became indebted to plaintiffs in various ways, and among others, by reason of their guaranty and payment of the following debts, viz.: To Beers & Kennison, $25.87, assumed April 30, 1885, and paid June 18, 1885; to J. Hourigan, $125, guarantied April 17, 1885, and paid August 3, 1885; to Galveston Gas Company, $36.50, guarantied prior to May 8, 1885, paid October 8, 1885. Plaintiffs further alleged that on May 8, 1885, Owens made a bill of sale of the property to the appellees, which was recorded in Galveston county May 20, 1885; but Owens still retained possession of the property. It is alleged that the appellees had actual notice of this mortgage at the time they purchased the goods from Owens; that after May 8, 1885, Owens paid off all the debts due to appellants, with the exception of the three above mentioned, aggregating $187.37. The existence of the mortgage in full force at the date of the bill of sale is alleged; also a foreclosure sale under it of the property in controversy, and a purchase thereat by the appellants. Prayer is made for a recovery of the value of the property, etc.
It is claimed by the appellees that the demurrers were properly sustained, first, because the petition does not allege, and the exhibit does not show, that after the instrument was executed and acknowledged, it was forthwith deposited in the office of the county clerk of Galveston county. The petition does allege, as we have seen, that on the day after the execution of the mortgage it was deposited with the county clerk of Galveston county to be kept among the chattel mortgages. This is what the statute requires to be done in order to give such an instrument validity as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees or lienholders in good faith. Brothers v. Mundell, 60 Tex. 246. It is true that the copy attached to the petition does not contain an indorsement as to the filing of the mortgage; but it was not attached in verification of the allegations of the petition as to such filing, but to sustain the allegations as to the contents of the instrument. The petition avers that a mortgage containing certain stipulations was executed by Owens, and refers to the exhibit to establish the averment;...
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