Smelser v. Baker

• Court: Texas Court of Appeals
• Writing for the Court: Finley
• Citation: Smelser v. Baker, 26 S.W. 905 (Tex. App. 1894)
• Decision Date: 21 March 1894
• Parties: SMELSER v. BAKER.

26 S.W. 905

SMELSER v. BAKER.

Court of Civil Appeals of Texas.

March 21, 1894.

Appeal from district court, Bowie county; John L. Sheppard, Judge.

Action by George C. Baker against J. H. Smelser for the value of a stock of goods. From a judgment for plaintiff, defendant appeals. Reversed.

McLean & Hynson, for appellant. P. A. Turner and J. M Talbot, for appellee.

FINLEY, J.

This is an agreed case under the statute, and the only question to be decided by this court is one of superiority of liens of the parties to the suit. Baker's lien is claimed through a chattel mortgage. Smelser's lien is based on the levy of a writ of attachment on the same stock of goods one hour and fifteen minutes before the mortgage was deposited in the clerk's office. Smelser held the stock of goods, and Baker sued him for the value of same. The case was tried before the judge, without a jury, who gave judgment for plaintiff, Baker, for the value of the goods. The undisputed facts are as follows: T. J. Watlington executed and delivered to plaintiff, Baker, at 11 o'clock on the night of June 3, 1889, a mortgage, providing for immediate possession by the mortgagee, on a stock of goods 20 miles away, and that plaintiff deposited the same in the county clerk's office at 7:15 o'clock on the morning of the 4th of June, 1889; that the defendant, Smelser, brought suit, and caused a writ of attachment to issue against Watlington on the night of June 3, 1889, and that the sheriff levied the writ of attachment on the same stock of goods at 6 o'clock on the morning of June 4, 1889, before appellee got actual possession of the same, and the levy thus made on the stock of goods being one hour and fifteen minutes prior in time to the deposit by Baker (plaintiff) of his mortgage in the county clerk's office. Baker tried to get his mortgage filed with the clerk on the night of its execution, but could not find the clerk. Appellant contends that the mortgage was not effective against him (a creditor) until it was deposited with the clerk for record, and that his attachment lien, secured by a levy made prior to such deposit of the mortgage, was superior to the lien created by the mortgage. Our statute governing the matter is as follows (article 3190b, Sayles' Civ. St.): "Section 1. Mortgages on Personal Property must be Recorded, When. Every chattel mortgage, deed of trust or other instrument of writing intended to operate as a mortgage of, or lien upon personal property which shall not be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the property mortgaged or pledged by such instrument, shall be absolutely void as against the creditors of the mortgagor or person making same, and as against subsequent purchasers and mortgagees or lienholders in good faith, unless such instrument or a true copy thereof shall be forthwith deposited with, and filed in, the office of the county clerk of the county where the property shall then be situated, or if the mortgagor or person making the same be a resident of this state, then of the...