In re Cardwell

• Decision Date: 08 May 1931
• Docket Number: No. 332.,332.
• Citation: 52 F.2d 158
• Parties: In re CARDWELL.
• Court: U.S. District Court — Southern District of Texas

52 F.2d 158 (1931)

In re CARDWELL.

No. 332.

District Court, S. D. Texas, at Brownsville.

May 8, 1931.

R. M. Bounds, of McAllen, Tex., for bankrupt.

HUTCHESON, Circuit Judge.

In the controversy between the landlord, claiming rent, the trustees, the city of McAllen, and McAllen independent school district, the referee found that the taxes had the priority, and the matter was submitted on the agreed statement of facts following:

"The bankrupt, John Cardwell, rented from M. Joseph Claimant herein, by a written lease agreement the ground business room located on Lot 11, in Block 4, of McAllen, Texas, for a period of five years commencing on the 1st day of February, 1928, and ending on the 1st day of February, 1933; the stipulated rental in said agreement being in the sum of Two Hundred Twenty-five and no/100 (225.00) Dollars monthly.

"On the 21st of July, 1930, M. Joseph procured the issuance of a distress warrant from the Justice Court, Precinct No. 3, Hidalgo County, Tex., claiming that the bankrupt was at that time indebted to him in the sum of $900, being for rent due for the current year and which distress warrant was served upon the 2nd day of August, 1930, by E. L. Hahn, Constable of Precinct No. 3 Hidalgo County, Texas, who executed the same by taking into his custody all the stock of hardware, together with all equipment found in the above described business room.

"That E. L. Hahn, Constable, retained possession of the stock of hardware and the equipment of the bankrupt's store until superseded therein by Mr. Ben Freudenstein, Trustee in Bankruptcy, said John T. Cardwell having been adjudged bankrupt on the 13th day of August, 1930.

"That immediately following the levy of such distress warrant the tax collector of the City of McAllen and McAllen Independent School District posted upon the front door of the hardware store of the bankrupt their notices of the amount of the past due and unpaid personal property taxes owed by said bankrupt on account of ownership of the stock of goods and equipment of said store, said notices being in the form prescribed by the law for levy upon and seizure of personal property on account of unpaid personal property taxes and which notices were executed respectively by the tax collectors of the City of McAllen and McAllen Independent School District, that said notices were posted upon the front door of the bankrupt's place of business on the following dates towit — McAllen Independent School District, 4th day of August, 1930; City of McAllen ______ day of August, 1930.

"Upon the adjudication of bankruptcy the claims of M. Joseph, landlord, and of McAllen School District and of the City of McAllen for taxes were filed in the bankruptcy cause as claims against the estate of the bankrupt.

"No levy nor attempted levy of any kind was made by Mr. O. E. Jones, Tax Collector for Hidalgo County, Texas on account of personal property taxes due the State of Texas and the County of Hidalgo although it has been ascertained that the present bankrupt was owing such taxes to the State of Texas and the County of Hidalgo and further that the records of Mr. O. E. Jones, Tax Collector, do not reflect what proportionate part of such past due personal property taxes were assessed on account of the stock of goods, equipment and fixtures in the hardware store of said John T. Cardwell."

The referee's decision having been questioned, upon application of the parties it was certified here for review.

Article 5238, Revised Statutes of Texas, gives a landlord a preference lien upon the property of the tenant for the payment of rents due and to become due. This lien is fixed by the statutes and is independent of any levy or compulsory proceedings, Marsalis v. Pitman, 68 Tex. 624, 5 S. W. 404; Livingston v. Wright, 68 Tex. 706, 5 S. W. 407, and such lien, even though creature of the statutes of the state, is not obtained through legal proceedings, but is to be classed as a lien within the true intent and meaning of the Bankruptcy Act. Henderson v. Mayer, 225 U. S. 631, 32 S....