McKelvy v. Gugenheim

• Decision Date: 29 January 1919
• Docket Number: (No. 6149.)
• Citation: McKelvy v. Gugenheim, 208 S.W. 757 (Tex. App. 1919)
• Parties: McKELVY et al. v. GUGENHEIM et al.
• Court: Texas Court of Appeals

208 S.W. 757

McKELVY et al. v. GUGENHEIM et al.

(No. 6149.)

Court of Civil Appeals of Texas. San Antonio.

January 29, 1919.

Appeal from Nueces County Court; David M. Picton, Jr., Judge.

Suit by S. Gugenheim and others against J. R. McKelvy and another. Judgment for plaintiffs, and defendants appeal. Affirmed.

Pope & Sutherland, of Corpus Christi, for appellants.

FLY, C. J.

This is a suit instituted by S. Gugenheim and H. Cohn against J. R. McKelvy and J. C. Baldwin to recover on a promissory note for $350, executed by the last-named parties, appellants herein, a payment of $95.34 being admitted to have been made on the note. Afterwards the death of H. Cohn was suggested, and his only heirs, Anna Cohn and Joseph A. Cohn, were made plaintiffs. Appellants answered by general demurrer and general denial, and specially answered that they executed the promissory note; that Baldwin at the time of execution of the note obtained from his codefendant, McKelvy, a chattel mortgage on his crop "and all succeeding crops of the said J. R. McKelvy until the note was paid together with other advances made by Baldwin for making crops"; that after the note matured McKelvy delivered to appellees $1,100 worth of cotton on which the mortgage rested, with the understanding and agreement that out of the proceeds of the cotton the note should be paid, but the same was not done by appellees. The cause was submitted to a jury on special issues, and upon the answers thereto judgment was rendered in favor of appellees for $406.75, with 10 per cent. per annum from date of judgment.

Appellees in a supplemental petition represented, and on the trial proved, that McKelvy was their tenant, and that they made large advances to him to enable him to make a crop. It is the contention of appellants that a mortgage on the crop, executed before the landlord's lien attached, was superior to the last-named lien. The question is raised through a refusal of the trial judge to permit appellant to introduce the chattel mortgage in evidence. Article 5475, Rev. Stats., gives a landlord "a preference lien upon the property of the tenant, * * * upon such premises, for any rent that may become due and for all money and the value of all animals, tools, provisions and supplies furnished by the landlord to the tenant * * * to make a crop on such premises." It is clear that a mortgage on the crop, given prior to the time when the landlord's lien attached, would not take preference over the latter. The decisions so hold. Neblett v. Barron, 160 S. W. 1167; Ivy v. Pugh, 161 S. W. 939; ...