Luckett v. Townsend

• Decision Date: 31 December 1848
• Citation: 3 Tex. 119
• Parties: A. W. LUCKETT AND N. M. LUCKETT v. NATH'L TOWNSEND AND THOS. A. MOORE
• Court: Texas Supreme Court

3 Tex. 119

A. W. LUCKETT AND N. M. LUCKETT

v.NATH'L TOWNSEND AND THOS. A. MOORE

Supreme Court of Texas.

December Term, 1848.

Error from Fayette County.

A writ of error, as recognized by our law, is one of the modes prescribed for bringing up a cause for revision. The whole case, embracing the facts as well as the law, is brought up by this mode as well as by appeal.

In the absence of a statement of facts, every presumption is in favor of the verdict; but when the verdict is repugnant to the admissions in the pleadings, there is no necessity of a statement of facts to show that the verdict is wrong. Nothing can be presumed to have been proved which could not legally have been proved under the pleadings.

A conditional sale passes the title to the vendee in the first instance, with a reservation to the vendor to re-purchase at a fixed price and in a specified time.

A mortgage is a conditional transfer of property, which becomes absolute in law if the condition be not performed.

A pledge or pawn is a deposit of goods, redeemable on the terms prescribed; it gives no right to the pawnee except that of possession, and as a security for the debt for which the pledge was made.

A mortgage is a pledge, and more. It is an absolute pledge, to become an absolute interest if not redeemed at a certain time. A pledge is a deposit not to be taken back but on the payment of a certain sum.

In the case of a mortgage, the legal property passes to the mortgagee, with a right of defeasance. The possession need not accompany the mortgage. In a pledge the general property does not pass to the pawnee; he acquires only a right to the possession and use. The possession must follow the pledge.

A pawnee has two remedies when his debt is due and the pawn is not redeemed. He may foreclose and have a judicial sale, or he may sell without foreclosure upon giving reasonable notice to the debtor. This notice is, however, indispensable, and the sale must be at auction.

A stipulation in a contract of pawn, that if the pawn be not redeemed within a specified time the right of property shall be absolute in the pawnee, can have no effect. Such a stipulation is inoperative to vest in the pawnee an absolute right of property.

The purchaser of property pawned, after the time when it should have been redeemed, acquires no higher right than the pawnee possessed.

An assertion to an absolute right on the part of the pawnee to the thing pawned, or a sale of it to another, dispenses with the necessity on the part of the pawnor to make a tender of the amount of the debt, to entitle him to his action to recover the pawn. [4 Tex. 311;6 Tex. 515;18 Tex. 198.]

It is competent for an appellate court to reverse the judgment of the court below, and remand the cause for a new trial, notwithstanding the number of new trials which the law allows to the party had previously been granted by the court below.

This was a suit brought by the plaintiffs in error in the county of Travis to redeem a negro boy, alleged by them to have been delivered to the defendant, Townsend, in mortgage or pledge.

The plaintiffs filed their petition on the 10th of December, 1841, alleging that on the 13th of November, 1840, they borrowed of the defendant, Townsend, one thousand dollars in the old consolidated funded debt of the republic, equal in value to one hundred and twenty-five dollars. That, to secure the payment, they executed a conveyance and delivered to Townsend a negro boy worth $800, to be held as security for the payment within six months of $200, in lieu of the $1,000 of funded debt, with the privilege of extending the time of payment to twelve months, by permitting the boy to remain in the possession of Townsend; that at the expiration of the time, being unable to procure the $200 in money, and the defendant refusing to receive Texas promissory notes or government liabilities, they obtained from him an extension of the time of payment to the first day of December, 1841, the boy remaining in his possession; that at the expiration of this period, being unable, in consequence of the absence of specie from the country and pressure of the times, to procure the good money, they tendered to the defendant an amount of Texas bonds whose current value was more than the original sum borrowed, with interest, deducting the hire of the boy; that the defendant refused to receive the amount so tendered, alleging that the boy had become his property absolutely by the contract, which the plaintiffs allege is contrary to its true intent and meaning. They further allege that the hire of the boy was worth one hundred and twenty-five dollars in good money, and that they “hereby offer and tender” the sum borrowed, with interest. They charge that the defendant is about to remove the boy beyond the jurisdiction of the court, or to dispose of him in fraud of their rights. They pray an injunction and sequestration, and that they be permitted to redeem upon payment of the debt and interest, and that the defendant account for the value of the hire of the boy.

The answer of Townsend, filed at the September term, 1842, admits the advance of the $1,000 in the consolidated fund of the republic to the plaintiffs, but alleges that it was of the value of $200. That the advance was made upon the agreement by the plaintiffs to pay him that sum within six months, and upon their placing in his possession the negro boy in question, with the understanding that his services should be received in compensation for the use of the $200; that it was further agreed, at the instance of the plaintiffs, that, should the money not be returned within the six months, the time of payment was to be extended to twelve months, he retaining the possession of the negro; and if not then made, the boy was to be his property. He alleges that, his circumstances requiring the use of all his means, he would not have deprived himself of the $1,000 of consolidated fund for the term of twelve months, for the consideration of the services of a boy of thirteen years of age; and was only induced to agree to the extension of the time of payment from the six to the twelve months by the voluntary offer of the plaintiffs, that, if the money was not paid in that time, the boy should be his bona fide property; and the $200, and the injury he would sustain by its not being returned, should be considered a full consideration for his value; that at the expiration of the six months, and also at the expiration of the twelve months, he repeatedly called upon the plaintiffs, and urged them to pay him the money, or return other stock of equivalent value to the consolidated fund advanced by him, and receive the boy; as he preferred taking the money or the stock to having the absolute property of the negro, as stipulated in the contract; but that they at all times neglected and refused to do so; and that being compelled to raise funds, after the expiration of the twelve months, he was forced to sell the boy, under the agreement made with the plaintiffs, that he was from that period to be considered his own property. He denies that the plaintiffs ever tendered the money or stock, or fund, equal in value to that advanced. He admits that they spoke of returning the same amount of consolidated fund which he advanced, and three hundred dollars in Texas promissory notes; but that the consolidated fund having materially depreciated in value, and the Texas notes not being equivalent for that depreciation, he refused to receive it unless a sufficient amount was offered, to be equal in value to that advanced at the time the advance was made; which they refused to do. He denies that any tender was made. He exhibits the contract as a part of his answer, the material stipulations of which are, that the plaintiffs had hired him a negro boy named Richard, aged thirteen years, upon the following terms and conditions, viz.: “The said Townsend having this day paid us the sum of two hundred dollars, the receipt whereof is hereby acknowledged, for and in consideration of the use of which the said Townsend is to have the services of the aforesaid boy during the term of six months; and should the said sum of money not be returned to the said Townsend at the expiration of the aforesaid time, he is to retain the possession and have the services of said boy until it is paid. But in the event the aforesaid sum of money is not paid to said Townsend within twelve months from this date, the said slave is hereby declared to be the bona fide property of said Townsend; and this instrument shall have the force and effect of a bill of sale.” It contains some other stipulations not now material; is dated on the 13th November, 1840, and signed by the present plaintiffs.

After this answer, on the 14th of April, 1843, the plaintiffs obtained leave and amended their petition; alleging that the defendant, Townsend, had sold or in some way disposed of the boy to one Thomas A. Moore; that he (Moore) had possession of the boy, and was apprised of the plaintiffs' rights; and they pray process and relief against him.

At the September term, 1844, the defendant, Moore, answered. His answer admits that he had purchased of Townsend the boy in question; that “he had no knowledge of the original transaction between the parties, except such as was derived from rumor and from conversations with the parties, subsequent to said transaction, and about the time he became the purchaser of said negro boy Richard; but he believes, and so understood at the time, that the said transaction was as it has since been stated by said Townsend in his answer to complainants' bill, and now on file among the papers and documents in this cause; this defendant understood, and verily believed at the time he purchased said boy from said Townsend, he was the bona fide property of said Townsend; and that said complainants did not, and would not, pretend to urge any further claim or right to him.” He sets forth his...