Sinker, Davis & Co. v. Comparet

• Decision Date: 25 November 1884
• Docket Number: Case No. 1690.
• Parties: SINKER, DAVIS & Co. v. JOHN M. COMPARET ET AL.
• Court: Texas Supreme Court

62 Tex. 470

SINKER, DAVIS & Co.

v.JOHN M. COMPARET ET AL.

Case No. 1690.

Supreme Court of Texas.

Nov. 25, 1884.

APPEAL from Blanco. Tried below before the Hon. L. W. Moore.

Appellant brought this suit as a private corporation against John M. Comparet, Henry Habenicht and Frederick Kuhne, on the 6th day of August, 1881; and afterwards made Benjamin, Thomas and Phil. P. Cage and Benjamin Brigham and C. A. Brown, defendants, to recover certain machinery described in “Exhibit A,” a part of petition, or in the alternative to enforce an equitable or mortgage lien against the property.

It alleged that, on the 19th day of March, 1878, it sold to appelleeComparet the property (of the value of $1,880) for that sum, upon the express condition that appellant did not part with, nor should Comparet acquire, any title whatever to the property until fully paid for; and in default of the payment or any part thereof, appellant or its agents might take possession of and move the property and sell the same to the highest bidder for cash, applying the same to the payment of the debt or any balance due thereon and expenses of sale, etc. That Comparet had failed to pay $790 and interest of purchase money; that on or about the 3d day of January, A. D. 1881, appellees Habenicht and Kuhne wilfully and unlawfully, without any right or authority of law, and with the intent of injuring and harassing appellant, and with full notice of appellant's claim and right to the property, took possession thereof, which property was then in Blanco county and in the possession of appellee Comparet, who held the same for the use and benefit of appellant. That Habenicht and Kuhne ever since that date had been in possession of the property, using and appropriating the same to their use and benefit, to appellant's damage $5,000.

Appellant alleges that appellees Cages, Brigham and Brown, since the institution of suit, took possession of the property in connection with Habenicht and Kuhne and were setting up some title or claim thereto.

Prayer was made for judgment against appellees for the recovery of the property or its value, with damages and costs, and if it should be decided that appellant was not entitled to recover it, judgment was prayed against Comparet for the debt, interest, attorney fees and costs, and against all of appellees, foreclosing the equitable or mortgage lien and for sale of the property to satisfy judgment.

Appellees Habenicht and Kuhne amended, pleading general denial, and, as special defense, that on the 6th of February, A. D. 1878, being the owners of lots 5 and 6, in block 11, of the town and county of Blanco, Texas, with a grist, flouring and saw-mill and gin machinery thereon, they sold said lots and machinery to appellee Comparet for $2,100, due in four years from that date. That Comparet, as a further consideration, agreed with appellees Habenicht and Kuhne within six months from that date to erect on the lots a good second-class steam flouring and grist country merchant mill; and to secure payment of $2,100 and interest, Comparet gave to them a mortgage lien on the lots and machinery, and the mill to be erected thereon. That the debt had not been paid or the mortgage released; that on the 2d day of March, 1878, appellees Habenicht and Kuhne loaned to Comparet, to be used and invested in the mill on the lots, $1,000, payable on 1st January, 1879. That Comparet executed and delivered to them his note and mortgage upon the lots, machinery, mills and appurtenances to secure payment of the $1,000 and interest. That again on the 10th day of May, A. D. 1878, appellees Habenicht and Kuhne loaned to said Comparet $1,000 more, to be used in the building of the mill, and took his note, payable in two years from date, together with his third mortgage on the lots, machinery and appurtenances, to secure payment. That the mortgages were properly acknowledged and recorded in Blanco county at the times of their execution and delivery.

That Comparet erected the mills on the lots, using thereon the machinery sold to him as aforesaid, and expending the money loaned him in purchasing material and erecting the building for the mills prior to 28th of August, 1880. That at this time appellees Habenicht and Kuhne brought suit in the district court of Blanco county, Texas, against said Comparet on said two notes and second and third mortgages, and on the 7th day of September, A. D., 1880, recovered judgment against Comparet for $2,423.60, with costs, and a foreclosure of the two mortgages on said lots, buildings, machinery, mills, etc., and on the 3d day of January, A. D. 1881, procured an order of sale to issue thereon, and caused same to be levied upon said lots, machinery, etc., and the same was by the sheriff of said Blanco county sold on the 1st Tuesday in February, 1881, at which sale the appellees Habenicht and Kuhne became the purchasers of the property for $1,062 credit on said order of sale. That said sheriff conveyed said property to them. That if they ever had possession of the various items of machinery described in appellant's petition, the same were attached to, connected with, used and employed about running the mill at the time of the institution of this suit and rendition of judgment and levy and sale, and that they acquired possession thereof by virtue of judgment, levy, sale and deed.

The conclusions of fact, found by the court, were as follows:

“1st. The note declared upon, as described in plaintiffs' petition and memorandum of contract of sale of certain machinery to J. M. Comparet, constituted a conditional sale; title to be perfected only upon payment; date being March 19, 1878, unacknowledged and unrecorded until May 23, 1881.

2d. The machinery was shipped May 31, 1878, and delivered about June, 1878.

3d. The defendants, Habenicht and Kuhne, on 6th February, 1878, sold certain lots with some machinery to said Comparet for $2,100?? on a credit of four years. By the terms of that sale, Comparet was to erect a good flouring and grist mill, and place therein for that purpose the proper machinery within six months; and for the security of said purchase money gave a mortgage not only on the property so purchased, but also upon any and all machinery he was to purchase for said mill, and placed same upon record same day of execution.

4th. Habenicht and Kuhne advanced $1,000 to Comparet on March 2, 1878, and took then, as security, mortgage upon all the property conveyed in the original sale, and also upon any and all machinery which Comparet was to furnish, by his original contract, which was recorded March 2, 1878.

5th. Habenicht and Kuhne advanced a further sum of $1,000 to Comparet, May 10, 1878, and took a like mortgage for its security, which was recorded same day.

6th. Sinker, of the firm of Sinker, Davis & Co., was present in Blanco and examined the mill site and machinery purchased by Comparet from plaintiffs after said sale and first mortgage for $1,000; it was then that said plaintiffs made a verbal agreement to furnish the necessary machinery to said Comparet.

7th. Habenicht and Kuhne filed their suit to foreclose their second and third mortgages, August 28, 1880; recovered their judgment September 7, 1880, and sold the property under an order of sale first Tuesday in February, 1881, and became the purchasers for $1,062, which was credited upon their judgment.

8th. There was testimony tending to show defendants had knowledge of the claim of plaintiffs' lien on the machinery they sold to Comparet, when they recovered this judgment, and on the day of sale...