Ft. Worth Nat. Bank v. Red River Nat. Bank

• Decision Date: 19 April 1892
• Citation: 19 S.W. 517
• Parties: FT. WORTH NAT. BANK v. RED RIVER NAT. BANK.
• Court: Texas Supreme Court

19 S.W. 517

FT. WORTH NAT. BANK v. RED RIVER NAT. BANK.

Supreme Court of Texas.

April 19, 1892.

Commissioners' decision. Section B. Appeal from district court, Cooke county; D. E. BARRETT, Judge.

Action by the Red River National Bank against J. H. Stone and the Ft. Worth National Bank of Ft. Worth. From a judgment for plaintiff, the Ft. Worth National Bank appeals. Affirmed.

A. M. Thompson and Potter, Potter & Eddleman, for appellant.

GARRETT, P. J.

Suit was instituted in the district court of Cooke county by the appellee to recover of J. H. Stone and another upon a promissory note, and to foreclose a chattel mortgage executed by Stone to secure the payment of the note upon 95 steers; and the appellant was made a party defendant, as claiming some interest in said steers. Appellant's claim grew out of the purchase by it of 33 head of the steers at a sale under an execution issued on a judgment in its favor against said Stone, levied subsequent to the execution of the mortgage. Trial was had without a jury, and judgment was rendered in favor of appellee for the amount of the note with foreclosure of the mortgage on all the cattle. The Ft. Worth National Bank alone has appealed. The case turns upon the sufficiency of the description in the mortgage of the cattle levied upon, it being contended by the appellant that the description in the mortgage as to the steers claimed by it under its execution sale is void for uncertainty. That portion of the mortgage relating to the description is as follows: "Ninety-five head of 3, 4, and 5 year old steers. Said steers are now located on the home place of the said John H. Stone, and in the following brands, to wit, about seventy-five head are branded T E X, and about twenty head are in various brands." Stone testified: "At the time of the execution of the deed in trust offered in evidence by plaintiff I had just ninety-five (95) head of three and four year old steers on my home place in Cooke county, Tex., about four miles north of Gainesville. I intended to embrace them all in said mortgage. In estimating the number in the different brands, I made a mistake. I thought at the time that there were about seventy-five (75) head of said cattle in the T E X brand, and about twenty head in various other brands. But when said cattle were levied upon, and an accurate count was made, it was found that there were only sixty-two (62) head in the T E X brand, and that there were thirty-three (33) head of said cattle in...