H. O. Wooten Grocer Co. v. Wade Meat Co.

• Decision Date: 20 February 1931
• Docket Number: No. 813.,813.
• Citation: 37 S.W.2d 1090
• Parties: H. O. WOOTEN GROCER CO. v. WADE MEAT CO.
• Court: Texas Court of Appeals

37 S.W.2d 1090

H. O. WOOTEN GROCER CO. v. WADE MEAT CO.

No. 813.

Court of Civil Appeals of Texas. Eastland.

February 20, 1931.

Rehearing Denied April 10, 1931.

Appeal from Nolan County Court; Chas. W. Lewis, Judge.

Suit by the Wade Meat Company against the H. O. Wooten Grocer Company and another. Judgment for plaintiff, and defendant named appeals.

Reformed and affirmed.

Davidson, Doss & McMahon, of Abilene, for appellant.

Hamner & Ponder, of Sweetwater, for appellee.

FUNDERBURK, J.

Wade Meat Company sued A. J. Belle and H. O. Wooten Grocer Company to recover of Belle upon a promissory note for $400, and against both defendants to foreclose a chattel mortgage lien. J. P. Wooten, at first named a defendant, was subsequently dismissed from the suit. The alleged mortgage, which was dated August 8, 1929, and duly filed, described the property which it purported to cover as follows: "Which display counter, twelve feet long, made by the Pioneer Planing Mill, Sweetwater, Texas, for one Hussman upright walkin meat refrigerator." The mortgage shows that A. J. Belle was a resident of Nolan county, and the name "Belle Groc." preceding his signature suggests that he may have been engaged in the grocery business. It contained a warranty of title to the property and a provision that, in event of default in the payment of the note secured, the mortgagee was authorized to sell the property "at Roscoe, Texas, in said county and state." Previously, on February 18, 1927, Belle had given a mortgage to said H. O. Wooten Grocer Company covering certain personal property therein named and reciting as follows: "This instrument is intended to cover any and all fixtures and delivery equipment used in my grocery business in Roscoe, Nolan County, Texas, if not mentioned. Also, all additions and exchanges during the life of this instrument." On February 15, 1928, at the expiration of a written lease contract, Belle had become a tenant of H. O. Wooten Grocer Company, from month to month, at a rental of $65 per month, and remained such tenant, carrying on his grocery and meat business in the rented premises until February 26, 1930, at which time he made an assignment to J. P. Wooten for the benefit of his creditors. In taking the assignment (which was informal and never recorded), J. P. Wooten was acting for H. O. Wooten Grocer Company, and shortly thereafter, on or about March 1, 1930, transferred all the property, including that claimed to be covered by plaintiff's mortgage, to said H. O. Wooten Grocer Company. The transfer was made subject to any existing liens and with information given at the time to defendant that plaintiff was claiming its mortgage lien upon the specific property in question. The rent due up to January 10, 1930, having been previously charged upon open account, was included, with other indebtedness, in certain notes upon which the defendant recovered judgment in the district court of Taylor county on May 16, 1930. That judgment also decreed that the entire indebtedness was secured by a chattel mortgage lien covering certain described property, and further, with reference to the property in question, recited as follows: "And it further appearing to the court that, since the execution of said mortgage (that is, the mortgage dated February 18th, 1927, above mentioned), defendant A. J. Belle has placed in said grocery business at Roscoe, Nolan County, Texas, additional fixtures, to-wit: One Display counter made by Pioneer Planing Mill Co; one Hussman Upright Walkin Meat Refrigerator; and that the foregoing chattel mortgage is a valid and subsisting lien upon said additional fixtures above described so placed in said business," etc. The judgment, while decreeing a foreclosure of the mortgage lien, took notice of the previous transfer of the same property from J. P. Wooten, assignee, to the defendant, and confirmed the vesting of title in the latter, by reason whereof it was directed that there be no sale under the decree of foreclosure. The Wade Meat Company, although first named a defendant in that suit, was dismissed prior to judgment. The trial court in the present case found that in said Taylor county suit the defendant, by amended pleading, for the first time on March 20, 1930, asserted a landlord's lien against said A. J. Belle. There is, however, no mention of the same in the judgment.

The defendant sought to defend against plaintiff's claim to a foreclosure of its alleged mortgage on the ground that the mortgage was void because of insufficient description of the property, and that its said chattel mortgage lien and landlord's lien were superior to the lien claimed by plaintiff. The judgment was for plaintiff for its debt, as to which no question is presented, and also for a foreclosure of the mortgage as to which H. O. Wooten Grocer Company has prosecuted this appeal.

The main question presented for our decision is whether or not the description of the property in the mortgage sought to be foreclosed was sufficient as to the appellant. There can be no real question of its sufficiency in so far as appellant was under the necessity of relying upon its title derived through the transfer to it by the assignee, J. P. Wooten. It took expressly subject to any pre-existing liens, and, besides, was at the time given notice that appellee claimed a lien upon the two articles of personal property in question. Appellant was therefore in no different relation to the question than were the original parties to the mortgage. "As between the parties, a specific and particular description is not necessary, and the mortgaged articles may be shown by parol evidence." 5 R. C. L. 429; Ranck v. Howard-Sansom Co., 3 Tex. Civ. App. 507, 22 S. W. 773; Boykin v. Rosenfield & Co., 69 Tex. 115, 9 S. W. 318; Oxsheer v. Watt, 91 Tex. 124, 41 S. W. 466, 66 Am. St. Rep. 863.

We are also of opinion that, if we regard appellant as not having waived its claim of a mortgage or landlord's lien, and as having no notice as to the identity of the property intended to be covered by appellee's mortgage, other than such as the mortgage itself contains and suggests, the description was not insufficient. The test of sufficiency, where a description is not sufficient in itself, is whether it suggests, "inquiries or means of identification, which, if pursued, will disclose the property conveyed." 11 C. J. 458; Handley v. McDonald & Ely Gin Co. (Tex. Civ. App.) 9 S.W.(2d) 372. The description in question in the first place carries, in itself, notice of mistake or error. Otherwise it would be meaningless. The whole instrument, however, compels the presumption that it was intended to describe certain items of personal property. Giving effect to that presumption, it is readily seen that the word "which," preceding the words "display counter, twelve feet long, made by the Pioneer Planing Mill, Sweetwater, Texas," is error (most probably typographical), and was meant to be "one" or "a." Likewise, the word "for," preceding "one Hussman upright walkin meat refrigerator," means "and" or "also." Clearly, then, the description of the first item was sufficient. It has often been held that a particular article not otherwise sufficiently described is adequately identifiable by a statement that it was bought from a named party. Conley v. Dimmit County State Bank (Tex. Civ. App.) 181 S. W. 271; Tips v. Gay (Tex. Civ. App.) 146 S. W. 306. The sufficiency of the description of both items is materially aided by the presumption that they were, at the time the mortgage was given, owned by Belle. "The description may be aided by the presumption that the mortgagor is the owner of the property." 11 C. J. 466. Although this authority notes a conflict in decisions, it is said in 5 R. C. L. 426, "A better view would seem to be that, even though there are no recitals in a mortgage as to ownership, in aid of the description it should be presumed that the mortgagor is the owner of the property he assumes to mortgage." Such presumption may render a description sufficient that otherwise might require a statement of the situs of the property. As further noted in R. C. L., "a description of property actually on the premises of the mortgagor may be sufficient, though the location is not stated." 5 R. C. L. 424. What inquiries then did the mortgage in question suggest to prospective purchasers and lienors? They were notified that Belle resided in Nolan county, and that perforce of the presumption aforesaid, he was the owner of the two items of property in question. One of the articles was identifiable by the fact that it had been made by the Pioneer Planing Mill of Sweetwater. The mortgage carried notice that Belle was probably engaged in the grocery business. There was such...