Scott v. Childers

• Decision Date: 20 October 1900
• Citation: 60 S.W. 775
• Parties: SCOTT v. CHILDERS.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

60 S.W. 775

SCOTT v. CHILDERS.¹

Court of Civil Appeals of Texas.

October 20, 1900.

Appeal from district court, Hill county; J. M. Hall, Judge,

Action by W. H. Childers against W. Scott. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Matlock, Miller & Dycus and Nelson Phillips, for appellant. Wear, Morrow & Smithdeal, L. A. Carlton, and A. P. McKinnon, for appellee.

TEMPLETON, J.

The appellee, W. H. Childers, was engaged in the dairy business at Hillsboro. The dairy property consisted of about 20 acres of land and 30 cows, with their calves. Childers had bought this property from B. H. Vaughan, and had given his notes, aggregating about $5,000, for the part of the purchase money. The notes were secured by a lien on the said property. Vaughan owed W. S. Heard a note for $1,044, and E. M. Cox and another were sureties on said note. The Childers notes were put up with Heard as collateral to further secure the note for $1,044. Vaughan also owed a Hillsboro bank $4,000, and the Childers notes were collateral security for said debt, as well as the Heard debt. In November, 1896, Childers made a contract to sell the dairy property to H. C. Weathered. It is not clear whether Weathered was buying for himself and Vaughan, or for Vaughan alone. No title papers passed, but Vaughan and Weathered took charge of the property and ran the business in their own names. On February 12, 1897, Childers conveyed the property to Vaughan alone; but it seems that the deed of conveyance was not delivered to Vaughan, but was deposited with one Word, to hold until Vaughan had complied with certain conditions. The preponderance of the evidence appears to be that Vaughan never complied with the conditions, and that the deed was never delivered, and that the agreement between Vaughan and Childers was that the title should not pass until the conditions were complied with. On February 16, 1897, Vaughan sold and conveyed the property to H. C. Weathered, who took possession. Vaughan testified that Weathered knew the facts concerning his title, but Weathered denied having such knowledge. The appellant, W. Scott, brought suit in the district court of Tarrant county against H. C. Weathered and others, and caused a writ of attachment to be issued in said suit, and on April 24, 1897, had the same levied on all the dairy property, both real and personal, as the property of H. C. Weathered, who was then in possession of same under his purchase from Vaughan. On May 4, 1897, E. M. Cox, one of the sureties on Vaughan's notes to Heard, brought suit in the district court of Hill county against Vaughan, Childers, and wife, Heard, Word, the Hillsboro bank, Scott, and the sheriff who levied the attachment, and who was then in possession of the property levied on. He alleged the facts above stated; asserted that the lien given on the attached property by Childers was entitled to priority over Scott's lien; claimed that, as Vaughan's surety, he had a right to have Vaughan's debt to Heard paid out of said property in preference to Scott; and asked for the appointment of a receiver to take charge of the property. Heard filed a cross bill in this suit, and prayed for like relief. One Frazier was appointed receiver, and took charge of the property, and sold the cows and calves, under an order of the court, for the sum of $657. Scott answered in this suit, and claimed that the district court of Hill county had no jurisdiction to take the property by a receiver, as the same was in custodia legis by virtue of the levy of his attachment issued out of the district court of Tarrant county, and sought to vacate the receivership. He further answered, and asserted that the property levied on by him belonged to H. C. Weathered, and was subject to his attachment; that, if the lien given by said Childers on said property was valid, it was entitled to priority over his lien only as to the land, and not as to the cattle, as the Childers lien had never been filed as a chattel mortgage; that Cox had never paid the Heard note; and that the bank and Heard held other security, which he asked to be exhausted first. He also pleaded in reconvention for the value of the cattle taken by the receiver. This suit is still pending. On September 11, 1897, Childers brought this suit in the district court of Hill county against Scott, and the officer who levied the attachment, and the sureties on his official bond, for the value of the cattle seized under Scott's attachment against H. C. Weathered. Scott answered, and claimed that the cattle were the property of Weathered, and not the property of Childers, and were subject to the levy. He also pleaded the facts above stated concerning the Cox suit as a bar to Childers' suit, and contended that, if the said facts did not constitute a complete defense, as he had been deprived of the benefit of his levy, and the property levied on was about to be applied to Childers' use, the amount so applied should be considered in mitigation of the damages. There was a trial by jury, and a verdict and judgment for Childers against appellant alone for $1,231.35.

The appellant contends that the trial court erred in permitting W. C. Wear, Esq., one of Childers' attorneys, to state that when Word, who held the deed made by Childers to Vaughan, brought the deed to him after the institution of this suit, he (Word) said that the deed was the one left with him by the parties thereto. The bill of exceptions shows that this testimony was admitted, but the contrary appears from an inspection of the statement of facts, which was agreed to...