Jones v. Bull

• Decision Date: 03 June 1892
• Parties: JONES v. BULL.
• Court: Texas Supreme Court

19 S.W. 1031

JONES v. BULL.

Supreme Court of Texas.

June 3, 1892.

Appeal from district court, Eastland county; WILLIAM KENNEDY, Judge.

Suit by G. A. Jones against T. D. Bull to try the right to property. Judgment for defendant. Plaintiff appeals. Reversed.

R. B. Truly and De Berry & Wheeler, for appellant.

HENRY, J.

This was a suit for the trial of the right of property. Appellant was plaintiff, and the property was in his possession when it was claimed by the appellee. The property in controversy was described as follows in the claimant's affidavit: "One Simmons cotton press; one eighty-saw Brown cotton gin; one 20horse-power engine, stationary." The issues upon the trial are stated as follows in appellant's brief: The plaintiff claims the property, "(1) by virtue of a certain mortgage, judgment, foreclosure, and order of sale, with deed thereunder, against one J. S. Jones, a former owner of the property; (2) that the property is, in law, fixtures, and was annexed to and part of the realty on which it was situated at the time of defendant's levy of his attachment and sale and purchase thereunder; (3) that at the time of the levy of defendant's attachment and sale thereunder, and long prior thereto, the plaintiff, claiming under the firm of J. S. Jones & Bros., was in possession of all of said property as lessee and pledgee to secure a valid unpaid promissory note, and other notes amounting to $1,600, owing him by J. S. Jones & Bros. and J. S. Jones; (4) that the property, being fixtures, was never subject to defendant's claim, and that defendant is not entitled to recover the property, the same never having been legally levied upon or sold to defendant; (5) that the property had never been severed from the realty or detached from the realty, but had continuously remained in plaintiff's actual possession and control, long after the levy of defendant's attachment, sale thereunder, and pretended purchase of same; (6) that defendant had made a false and fraudulent affidavit for the purpose of obtaining an order of sale to sell said property as perishable, with intent to defeat plaintiff's right to same; (7) that defendant is not the owner of, and has no right to, the property, or possession of same, and that plaintiff is the legal and equitable owner, and entitled to the property." "Defendant, in his joinder of issue, pleaded (1) that he had a valid debt against one J. S. Jones, and caused to be issued a writ of attachment against him, and levied upon the property in suit, which then was the property of J. S. Jones, and personal; (2) that it was legally sold under order of sale from county court, and purchased by defendant for $400, and that he is the legal owner of the property, and that plaintiff has no rights or interest therein; (3) that the plaintiff's pretended debt was fictitious, and his suit of foreclosure fraudulent as to defendant."

The assignments of error present a number of questions which we do not think it is necessary for us to consider, as the determination of one of them is conclusive of the controversy. The claimant caused the property to be seized by a writ...