Mason v. Green

• Decision Date: 16 December 1920
• Docket Number: (No. 2339.)
• Parties: MASON v. GREEN.
• Court: Texas Court of Appeals

226 S.W. 829

MASON v. GREEN.

(No. 2339.)

Court of Civil Appeals of Texas. Texarkana.

December 16, 1920.

Appeal from District Court, Lamar County; A. P. Dohoney, Judge.

Suit by Jim Mason against F. P. Green, in which defendant filed a cross-bill. Judgment for defendant on his cross-bill, and plaintiff appeals. Affirmed as reformed.

The appellant sued the appellee for damages for the alleged conversion of certain personal property consisting of 3 beds, 2 springs, 1 chiffonier, sewing machine, cookstove, rocking-chair, trunk, kitchen safe, 4 chairs, 2 tables, wash pots, tubs and board, 20 quilts, 3 mattresses, 10 sheets, feather bed, pillows, flat irons, 75 jars of fruit, piano, kitchen cabinet, wearing apparel, and 5 hogs. The defendant answered by general denial, and in a cross-bill alleged that the plaintiff had executed a promissory note payable to the appellee and had secured same by a chattel mortgage covering, among other things, all the articles mentioned in the original petition of the plaintiff, and had placed the appellee in possession of the same, and prayed for judgment for the debt and for a foreclosure of the chattel mortgage lien on the property. The appellant by a supplemental petition demurred and excepted to the cross-bill, and answered that at the time of the execution of the chattel mortgage he was a married man living with his wife, and the head of a household. The case was tried before the court without a jury.

The evidence shows that in the year 1919 appellant with his wife and five children moved onto the appellee's farm to make a crop. In order to obtain supplies and advances for the year the appellant executed a note for $600 payable to appellee on October 1, 1919, and at the same time executed a chattel mortgage to secure the payment of the note on the following:

"All my crop consisting of 30 acres of cotton, and 8 acres of corn, 3 horses, 1 wagon, harness, 1 stalk cutter, 2 cultivators, 1 beffer, 12 sweeps, 1 planter, 1 piano (subject to another note), 1 sow and increase, all household furniture."

Appellant's wife did not sign her name to the mortgage, and did not acknowledge the same. In September the appellant and his family left the farm, as he says, to go elsewhere to pick cotton, intending to be away only temporarily. And the testimony of appellant goes to show that while he was away the appellee took and appropriated the personal property sued for, claiming it as payment on the note. The testimony of the appellee, though, goes to show that the appellant when he left the place left the property in suit in the possession of appellee, and that he has merely held the same for him during that time. The cotton, corn, horses, implements, and hogs mentioned in the mortgage are not involved in the suit, having before suit been by the parties applied on the mortgage debt. It is shown by the evidence that part of the property in suit is "household furniture," and under the terms of the chattel mortgage, and the remaining part, in point of fact, is not household furniture and is not embraced in the terms of the mortgage, but is property exempt under the law.

The court made a finding that the following property was under the terms of and subject to the chattel mortgage, viz., sewing machine, three beds, two bedsprings, four chairs, a rocking-chair, chiffonier, two tables, and a piano, and that the mortgage lien should be foreclosed thereon, and that the appellee had converted the property not under mortgage of the value of $184. The evidence supports the findings of the court.

Judgment was entered in favor of the appellee on his cross-bill for the balance due on the note less the credit of $184 damages allowed the plaintiff, and a foreclosure of the chattel mortgage lien on the sewing machine, three beds, two bedsprings, four chairs, rocking-chair, chiffonier, two tables, and piano.

L. L. James and T. E. McMillan, both of Cooper, for appellant.

Baughn & Johnson, of Paris, for appellee.

LEVY, J. (after stating the facts as above).

The appellant contends, under proper assignments of error, that the court erred (1) in crediting the debt adjudged due the defendant by the plaintiff on the note with the amount of damages awarded the plaintiff against the defendant for conversion of exempt property, and (2) in foreclosing the chattel mortgage lien on the property stated in the judgment. The entire property in controversy in the suit is property exempt from forced sale to a family. Some of this property was under the terms of the mortgage as "household furniture," and the rest of the property was not covered by the mortgage. The court found that the property not covered by the mortgage was taken and converted, and he allowed the plaintiff damages therefor. The statute expressly provides that if the plaintiff's suit be founded on a tort, as here, the defendant shall not be permitted to set off any debt due him by the plaintiff. Article 1329, R. S. And the courts especially declined to allow a set-off against claims arising out of exempt property. Craddock v. Goodwin, 54 Tex. 578; Cone v. Lewis, 64 Tex. 331; 24 R. C. L. p. 815, § 21. The purpose and spirit of the exemption law is protection of the exempt property from all manner of coercive process of the law. And to allow a set-off would result in a palpable evasion of the law. This assignment of error is sustained.

The contention that the chattel mortgage was void and should not have been foreclosed because the wife did not sign and acknowledge same is predicated upon article 6171j, Vernon's Ann. Civ. St. Supp. 1918. The caption of that act (Acts General Laws 1915, p. 48), as well as the entire law (Vernon's Ann. Civ. St. Supp. 1918, arts. 6171a-6171l) refers and was intended to apply only to a "loan broker," defined in section 1 (article 6171a) as:

"A `loan broker' is a person, firm or corporation who pursues the business of lending money upon interest and taking as security for the payment of such loan and interest an assignment of wages, or an assignment of wages with power of attorney to collect the same or other order for unpaid chattel mortgage or bill of sale upon household or kitchen furniture."

It is clearly an act undertaking to regulate the business of a loan broker. Section 11, which is the section relied on by appellant, does make void, it is true, any "chattel mortgage upon the household and kitchen furniture of a married man" unless the wife consents to the chattel mortgage by signing with her husband and separately acknowledging the same. But this section, in the light of the preceding section 10 and the other sections and...