Oak Cliff College for Young Ladies v. Armstrong

• Decision Date: 11 February 1899
• Citation: Oak Cliff College for Young Ladies v. Armstrong, 50 S.W. 610 (Tex. App. 1899)
• Parties: OAK CLIFF COLLEGE FOR YOUNG LADIES et al. v. ARMSTRONG.
• Court: Texas Court of Appeals

50 S.W. 610

OAK CLIFF COLLEGE FOR YOUNG LADIES et al. v. ARMSTRONG.

Court of Civil Appeals of Texas.

February 11, 1899.

Appeal from district court, Dallas county; W. J. J. Smith, Judge.

Suit by Oscar Armstrong against the Oak Cliff College for Young Ladies and others. There was a decree for plaintiff, and defendants appeal. Affirmed.

This suit was instituted by Oscar Armstrong against Oak Cliff College, Oak Cliff College for Young Ladies, John W. Roach, and W. L. Diamond. It is based upon eight notes for $60 each, and each providing for interest and attorney's fees, charged to have been executed by Oak Cliff College August 1, 1895. It is alleged that they were given as part of the purchase price of seven pianos, and that a mortgage was given upon the pianos to secure the payment of the notes. It is charged that, while the Oak Cliff College and the Oak Cliff College for Young Ladies have separate and distinct charters, they are in fact one and the same corporation. It is alleged that the Oak Cliff College for Young Ladies, John W. Roach, and W. L. Diamond are setting up claim to the mortgaged property, and judgment is sought against the Oak Cliff College, and the foreclosure of the mortgage against all the defendants. No answer was filed by the Oak Cliff College. The other defendants answered, and their answers are stated in their brief as follows: "The defendants, on the 22d day of April, 1898, by their second amended original answer, entered a general demurrer and general denial, and answered specially, claiming to hold said property by purchase and a judgment lien under mortgage of date September 5, 1895, made by the Oak Cliff College, per A. S. Laird, to W. B. Sharp, to secure the sum of $1,300.00 for boring an artesian well, and duly registered in Dallas county, Texas, October 6, 1895, which said mortgage covered the identical property,—the pianos upon which plaintiff seeks his foreclosure. That on November 16, 1895, said work was finished, and on December 1, 1895, before the maturity of said claim, W. B. Sharp, for valuable consideration, transferred said claim and right, mortgage, and debt to the American Well Works, a private corporation. That on the 6th day of January, 1896, the said American Well Works filed suit No. 14,668, in the Fourteenth judicial district of Texas, in Dallas county, against the Oak Cliff College, a private corporation, to foreclose said lien. That on the 16th day of June, 1896, the American Well Works recovered judgment in said cause No. 14,668, together with the interest and attorney's fees, and foreclosure of lien on said pianos, in the sum of $1,437.50. The said cause was appealed, and while pending on appeal, W. L. Diamond and John W. Roach, in their own individual names and right, bought said judgment and judgment lien. The said appeal was dismissed, and the property in controversy was sold by order of sale in said cause. John W. Roach and W. L. Diamond became purchasers in the sum of $400.00. That on the 1st day of September, 1897, for valuable consideration, they transferred the same to the Oak Cliff College for Young Ladies, a private corporation, and it is now the owner and in possession of the same. That, at the time the said W. B. Sharp took the contract and the chattel mortgage from the Oak Cliff College, he had no knowledge of the chattel mortgage relied upon by the plaintiff. The said pretended mortgage of plaintiff had not been filed for registration, and that said W. B. Sharp contracted said debt, and procured said mortgage to secure the same, in good faith, and without knowledge or notice of plaintiff's pretended mortgage lien in this case. That the American Well Works bought same in good faith, for valuable consideration, and had no knowledge whatever of plaintiff's pretended mortgage, when it filed suit for the same on the 6th day of January. 1896; plaintiff's pretended mortgage not having been filed for registration. That John W. Roach and W. L. Diamond purchased said property, relying upon the said statements of W. B. Sharp and the American Well Works; that they were innocent and bona fide lienholders, for valuable consideration; and that the said John W. Roach and W. L. Diamond purchased same for $400.00 at sheriff's sale, which amount was credited upon said judgment, without notice of plaintiff's pretended unrecorded lien. That the said Roach and Diamond bought the same upon the faith and credit and representations of W. B. Sharp and the American Well Works; that there was no lien upon said property. That they were innocent purchasers, for value, and that the lien which was held, and the judgment which they possessed, was the only lien upon said pianos; and the said Diamond and Roach, believing, and relying and acting upon, said representations, purchased said judgment and the property at foreclosure sale, for the sum of $1,500.00, in fact; said pretended mortgage to the plaintiff not having been filed for registration. The defendants further prayed for judgment confirming title in defendant the Oak Cliff College for Young Ladies, and in favor of defendants Diamond and Roach for all costs; and for judgment canceling the pretended and unregistered mortgage of the plaintiff; and for general and special relief. The defendants also pleaded that the American Well Works, W. B. Sharp, their agent and attorney, being the same attorney for all of said parties, has fraudulently entered into a conspiracy to wrong and cheat said defendants out of said pianos; and that, if relief be denied them as hereinbefore set out, they have judgment against the American Well Works for such an amount as may be judged a lien in favor of plaintiff on said pianos, for costs, and general relief." The plaintiff filed supplemental pleadings, demurring generally and specially to defendants' pleadings making the American Well Works a party. These demurrers were sustained, and the American Well Works was dismissed from the suit. The case was then tried before a jury, and resulted in a verdict and judgment for the plaintiff against the Oak Cliff College for his debt, interest, and attorney's fees, and foreclosure of the mortgage as to all the defendants. From this judgment the defendants Oak Cliff College for Young Ladies, John W. Roach, and W. L. Diamond have appealed.

J. D. Fouraker, Morris & Crow, and Porter & Cohron, for appellants. Wharton & Young, for appellee.

FINLEY, C. J. (after stating the facts).

First. There is little,...