Pugh v. Whitsitt & Guerry
| Decision Date | 08 November 1913 |
| Citation | 161 S.W. 953 |
| Court | Texas Court of Appeals |
| Parties | PUGH v. WHITSITT & GUERRY et al. |
Appeal from Parker County Court; T. F. Temple, Judge.
Action by Whitsitt & Guerry against C. F. Pugh and another. From a judgment for plaintiffs and an unnamed defendant, the defendant named appeals. Reversed and rendered in part, and affirmed in part.
R. L. Stennis, of Weatherford, for appellant. Hood & Shadle and Preston Martin, all of Weatherford, for appellees.
Whitsitt & Guerry instituted this suit against C. F. Pugh for debt and foreclosure of a mortgage lien in plaintiffs' favor on certain cotton raised by the defendant during the year 1912. Plaintiffs alleged that the Farmers' Bank of Peaster had a prior mortgage on said cotton, and also on two mules, one wagon, and a cow, to secure a debt owing to it by Pugh, and the bank was made a defendant. Upon the equitable doctrine of marshaling securities plaintiffs prayed that the bank be required to disclose the amount of indebtedness due it by Pugh and secured by the mortgage in its favor, and that that indebtedness be satisfied first out of the proceeds of the sale of the mules, wagon, and cow, and that the balance of said bank debt, if any, be satisfied out of the sale of the cotton, leaving the remainder of the proceeds of the cotton subject to plaintiffs' debt.
The bank filed an answer, in which it alleged the execution and delivery to it by Pugh of a promissory note and the mortgage as alleged in plaintiffs' petition, and prayed judgment against Pugh for the amount of the debt, together with foreclosure of the mortgage lien upon the property.
Pugh also filed an answer, alleging that he was the head of a family, and claiming the mules, wagon, and cow as exempt from forced sale to pay plaintiffs' debt. He prayed for judgment requiring the satisfaction of the bank's debt first out of the cotton before resort should be had to the mules, wagon, and cow, and that only such balance of the proceeds of the sale of the cotton as might remain after the satisfaction of the bank's debt should be subjected to the payment of the debt he owed the plaintiffs.
In obedience to a peremptory instruction by the trial judge, the jury returned a verdict in favor of the plaintiffs and also in favor of the bank against the defendant for their respective debts and for foreclosure of their respective liens, with direction that for the satisfaction of the judgment in favor of the bank the mules, wagon, and cow should be first sold, and the proceeds applied to the payment of that judgment, that the cotton should then be sold for the purpose of paying any balance that might remain unpaid on the bank's judgment, and that the proceeds of the sale of the cotton should be applied to the payment of the plaintiffs' debt to the exclusion only of such amount as might be required to satisfy the bank's debt after the application thereto of the proceeds of the sale of the mules, wagon, and cow. From a judgment rendered in accordance with this verdict, the defendant Pugh has appealed.
Substantially all the facts alleged in the pleadings, including those upon which defendant Pugh based his plea that...
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11 293 Meyer v. United States
...'head of the household' exemption was involved, Westgrove Savings Bank v. Dunlavy, 190 Iowa 1054, 181 N.W. 404, and Pugh v. Whitsitt & Guerry, 161 S.W. 953 (Tex.Ct.Civ.App.). Federal courts have likewise accepted this principle of the nonapplicability of the doctrine where, as here, one of ......
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