Scaling v. First Nat. Bank

• Decision Date: 22 April 1905
• Citation: 87 S.W. 715
• Parties: SCALING v. FIRST NAT. BANK OF WICHITA FALLS et al.
• Court: Texas Court of Appeals

Page 715

87 S.W. 715

SCALING v. FIRST NAT. BANK OF WICHITA FALLS et al.

Court of Civil Appeals of Texas.

April 22, 1905.

On Rehearing, May 27, 1905.

Appeal from District Court, Wichita County; A. H. Carrigan, Judge.

Action by the First National Bank of Wichita Falls against L. M. Webb, Sam Scaling, and others. From a judgment for plaintiff, defendant Scaling appeals. Affirmed.

Montgomery & Hughes, for appellant. Huff, Barwise & Huff, for appellee.

SPEER, J.

The First National Bank of Wichita Falls instituted this suit against L. M. Webb to recover the sum of $1,000, together with interest and attorney's fees, evidenced by a promissory note. It also sought to foreclose a chattel mortgage lien on "one hundred and twenty-five head of steers, some branded D on left hip some branded A on right side," as against said Webb and Sam Scaling; alleging that said Scaling had assumed to pay the debt, and also converted said cattle. The petition sought also to foreclose a chattel mortgage lien upon a quantity of wheat against other parties defendant, as to whom the suit was subsequently dismissed. There was a judgment for the plaintiff, based upon the verdict of a jury finding against Webb according to the face of his note, and against Scaling for the conversion of the mortgaged cattle.

Scaling, the appellant, contends that the bank, basing its right to sue for damages on the fact that it had a mortgage on the steers, is not entitled to recover without proof that its security has been depreciated or reduced in value to an extent that it is insufficient to pay its debt. When we examine the petition, we find that, as suggested by appellant, a chattel mortgage upon 3,000 bushels of wheat, worth $2,000, was declared upon; but it was also alleged that Williams Bros. and the Wichita Mill & Elevator Company had taken possession of said wheat and converted the same to their own use, as to which defendants, as already stated, the bank dismissed its suit for conversion. It reasonably appears from the petition that this wheat and the cattle alleged to have been converted by appellant constituted the only security the appellee had for its debt. It would follow, of course, so far as the pleadings are concerned, that the act of appellant had not only depreciated appellee's security, but entirely dissipated all that remained. As to the testimony, we fail to find any evidence whatever that appellee held a mortgage upon any property other than the cattle.

There was ample testimony to authorize the finding that the cattle upon which defendant Webb executed the chattel mortgage in question belonged to him in his individual right, and, whatever may be the equities between Webb and Scaling as partners engaged in buying and selling cattle, certainly the appellee bank cannot be postponed in the collection of its debt to the adjustment of these equities. It may be that in an accounting between the partners Scaling & Webb, this property, if it were purchased with partnership funds by the managing partner, a court of equity would treat it as partnership property as between them. This is the extent of the holding of the case of Armes v. Kimberley, 129 U. S. 512, 10 Sup. Ct. 1064, 34 L. Ed. 557, so much relied on by appellant.

We also find that the original and the renewal mortgages executed by Webb upon the cattle in question were not void, but sufficiently described the property, and were duly filed with the county clerk of Archer county, Tex.—the county in which the mortgaged property was situated—and that there was no variance between the allegations of the petition and such mortgages. The original mortgage described the cattle as being "one hundred two year old steers branded either D on left hip or A on right side. Twenty-five head of yearling steers branded either D on left hip or A on right side and being all the cattle in said brands, being the same cattle bought by me from J. C. Hoge of Throckmorton Texas, the said cattle being held in the L. M. pasture about 18 miles south of Dundee, Texas." The renewal mortgage described the property as "one hundred head of three year old steers branded D on left hip and A on right side, also twenty-five head of two year old steers branded D on left hip and A on right side, the said cattle being located in L. M. pasture 15 miles south of Dundee, Archer county, Texas, and being same cattle formerly mortgaged to said bank. This mortgage being given in renewal of the indebtedness." The allegations of the petition have already been set forth. The original chattel mortgage shows to have been "duly filed for record December 1, 1902, at 8:45 o'clock a. m., and duly registered same day in Book 6 of Archer county record of chattel mortgages, p. 163"; the statement of facts further reciting, "Both filing and registration of this mortgage being in legal form." The renewal mortgage appears to have been executed on May 25, 1903, and was filed for record in the office of the county clerk May 27, 1903, "and properly entered in record of Archer county chattel mortgages May 27, 1903, in Book 6, p. 183, all regular and in legal form." Ft. Worth National Bank v. Red River National Bank (Tex. Sup.) 19 S. W. 517; Lapowski v. Taylor (Tex. Civ. App.) 35 S. W. 934; Johnson v. Brown (Tex. Civ. App.) 65 S. W. 485. We think the undisputed evidence shows that appellant received and converted the mortgaged property. The testimony of Webb that the cattle bought of Hoge, mortgaged to the bank, and sold to appellant, consisted of "one hundred and twenty-five head of cattle, nearly all of which were steers branded D on left hip and A on right side," in no way shows that the same were not the cattle covered by the mortgage sought to be foreclosed in this suit. This, in connection with other parts of the testimony of the same witness, shows clearly that some of the cattle were branded D on left hip, and some of them A on right side. So that we clearly could not sustain the third assignment—that the undisputed evidence shows that the plaintiff bank had no mortgage on any of the cattle that ever came into the possession of appellant. Construing Webb's testimony as we have, the evidence is undisputed that all the cattle included in the mortgage did come into his possession, and were converted by him. This also disposes of the fourth, fifth, and sixth assignments.

What we have already said to the effect that the chattel mortgages in question were filed with the proper officer in Archer county also disposes of the seventh and eighth assignments of error. We find nothing to suggest that these mortgages were not filed for permanent deposit with the county clerk. If they were, the fact, if it should be a fact, that that officer failed in any respect to discharge his duty, would in no wise affect the appellee's rights in the premises. Cleveland v. Empire Mills (Tex. Civ. App.) 25 S. W. 1055; Ames Iron Works v. Chinn (Tex. Civ. App.) 38 S. W. 247. Nor is appellant relieved from liability by reason of having received and sold the cattle, or a part of them, in the state of Illinois. He is yet charged with constructive notice of appellee's lien, and is liable for the value of the cattle in an action for conversion. Bank of Louisville v....