Rankin v. Wanser.
| Decision Date | 28 September 1946 |
| Docket Number | No. 4932.,4932. |
| Citation | 172 P.2d 1016,50 N.M. 141 |
| Parties | RANKINv.WANSER. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Union County; Luis E. Armijo (sitting for Livingston N. Taylor), Judge.
Action by J. L. Fuqua, Jr., and others against Wilbur L. Trego and another to recover on a note, for appointment of a receiver to foreclose a purchase money lien, and for other relief, wherein Rhea R. Wanser intervened seeking to recover on a note and to enforce a lien against the property involved, to which petition of intervention the plaintiff and J. H. Rankin, the receiver, filed a demurrer. An order sustaining the demurrer was reversed and, from a subsequent judgment in favor of intervener, the receiver appeals.
Affirmed.
The Supreme Court's decision that partners' contract providing for equitable lien to seller of fixtures to partnership was not merged in subsequently defectively executed chattel mortgage delivered to seller, so as to preclude seller from enforcing lien against partnership's receiver, constituted law of the case establishing seller's right to lien.
O. P. Easterwood, of Clayton, for appellant.
Fred C. Stringfellow, of Raton, for appellee.
J. H. Rankin, as receiver of City Drug Store of Clayton, New Mexico, prosecutes this appeal from a judgment rendered by the District Court of Union County decreeing a lien upon the funds in his hands as receiver in favor of Mrs. Rhea R. Wanser to secure a balance due on a note and mortgage evidencing the purchase price of certain drug store furniture and fixtures previously owned by her. For a statement of the pleadings upon which a former appeal out of this case was before us, see Fuqua v. Trego, 47 N.M. 34, 133 P.2d 344.
As disclosed by the opinion on the former appeal, the partners composing City Drug Store of Clayton, namely, Fuqua, Murphy and Trego, upon becoming insolvent filed a petition in the district court for the appointment of a receiver. J. H. Rankin, the appellant here, was named such receiver. Other pleadings were filed in that case on behalf of two of the plaintiffs therein, Fuqua and Murphy, which it is unnecessary to describe but which will be found discussed in the opinion on the former appeal.
The intervenor-appellant on that appeal, Mrs. Rhea R. Wanser, filed her amended petition in intervention setting up three causes of action, only one of which it will be necessary to mention here. The first claimed an equitable lien on the funds in the hands of the receiver resulting from the sale of the furniture and fixtures of City Drug Store. It was alleged that a note and mortgage evidencing a balance due upon the sale were given pursuant to a contract between purchasers, the said Murphy and one Markham of the one part and Mrs. Rhea R. Wanser, by the terms of which the purchasers covenanted to give her a good and valid lien upon the furniture and fixtures to secure the balance due on the purchase price; that a note and chattel mortgage were executed in behalf of the seller, but that due to the gross negligence and intentional fraud of the said Murphy and Markham, they failed to acknowledge either the contract or the mortgage so as to entitle them to be filed of record or recorded. Other allegations appeared not necessary to mention.
The plaintiffs in the aforementioned suit and the present appellant, J. H. Rankin, as receiver, demurred to the petition in intervention filed by Mrs. Wanser. The demurrer was sustained and, treating the order sustaining same as having the effect of a dismissal of her petition in intervention, the intervenor, Mrs. Wanser, prosecuted an appeal to this court. It was disposed of by the opinion officially reported as above mentioned. We reversed the district court, holding that the demurrer should have been overruled and that ‘plaintiffs should have been required to answer or otherwise plead further.’ We directed the trial court to set aside its order sustaining the demurrer and enter an order overruling the same and to permit the parties to proceed in a manner not inconsistent with our opinion.
When the cause again reached the District Court of Union County, the receiver, J. H. Rankin, filed his answer to the amended petition in intervention in which he denied knowledge of the existence of the contract to give a chattel mortgage until long after his appointment as receiver and denied the effect of either the contract or the chattel mortgage as notice to him because of the lack of a statutory acknowledgment entitling either to filing or record in the office of the county clerk.
The case was later tried and the court made its findings of fact and conclusions of law substantially in conformity with the allegations of the appellee's amended petition in intervention, especially as respects the agreement of the purchasers of the furniture and fixtures to give to the seller, the appellee here, a good and valid lien upon the property sold by a mortgage to be executed by them securing the balance of the purchase price and as regards the purchasers' failure to acknowledge either the contract or chattel mortgage before filing the same with the County Clerk of Union County.
The trial court also found in conformity with allegations of the petition in intervention that various transfers of interests in said drug store, including the furniture and fixtures, subsequently took place but that in each instance the purchaser took with knowledge of the note and mortgage and that the amount due thereunder was unpaid; that finally one Wilbur Trego, upon acquiring the whole or a part interest in said drug store, assumed and agreed to pay the indebtedness due Mrs. Wanser and that all subsequent purchasers of interests in the store recognized and ratified the transaction for the sale of the furniture and fixtures and made installment payments of $75 each, aggregating thirty-two in number, according to the terms of said note.
The amount due to the appellee on account of the transaction related was found to be $2100 with interest thereon at the rate of eight (8%) per cent. per annum from May 2, 1941, less...
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