Speer v. Allen

• Decision Date: 28 January 1911
• Citation: 135 S.W. 231
• Parties: SPEER v. ALLEN.
• Court: Texas Court of Appeals

135 S.W. 231

SPEER v. ALLEN.

Court of Civil Appeals of Texas.

January 28, 1911.

On Motion for Rehearing, March 4, 1911.

Appeal from District Court, Johnson County; O. L. Lockett, Judge.

Action by Eva Allen against R. M. Speer. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

A. S. Bledsoe and H. P. Brown, for appellant. R. S. Phillips and Mitchell Davis, for appellee.

TALBOT, J.

This suit was brought by the appellee against appellant to recover damages for malicious prosecution. The petition alleges, in substance, that the appellant made an affidavit on the 12th day of December, 1905, before Mason Cleveland, the then county attorney of Johnson county, Tex., charging appellee with the offense of unlawfully and fraudulently disposing of certain personal property, without appellant's consent, upon which she had given appellant a mortgage in writing to secure him in the payment of a debt owing by appellee to appellant. The petition further alleges that the prosecution so instituted against appellee was prompted by malice and without probable cause, that the grand jury failed to indict appellee of the charge preferred against her by appellant, and that said prosecution had been dismissed. The defendant answered by a general demurrer and general denial. A jury trial resulted in a verdict and judgment in favor of the appellee for $800 actual and $400 exemplary damages, and appellant appealed.

The appellant requested the court to charge the jury as follows: "In this case you are instructed that the general description in the mortgage as to the property located or to be located in the Padelford House was sufficient to cover and include within the terms of the mortgage any and all property of the kind generally described and referred to in said mortgage that was situated or located in said Padelford House, and this irrespective of the fact as to whether or not each item of the property was specifically described in said mortgage." This charge was refused, and the jury instructed, in effect, that the mortgage of the appellant covered only the goods that are set out and described in said mortgage, and that, before they would be warranted in concluding that the appellee was guilty as charged in the affidavit made by the appellant dated December 12, 1905, they must believe from the evidence that the goods set out in said affidavit were the goods described in said mortgage, but that they could consider "all of said mortgage in determining whether or not R. M. Speer had probable cause for believing, and did honestly believe, that the property listed in said complaint was included in said mortgage." We think the court should have given the charge requested by appellant, or a charge equivalent thereto, instead of instructing the jury as above shown. The affidavit made by appellant upon which the prosecution of appellee was based and upon which this suit was predicated described the property alleged to have been disposed of by appellee as one lot of fruit saucers, one lot of twelve dinner plates, one dozen goblets, one floor rug, one bed mattress, one pillow, one lamp. one stew pan, three vegetable dishes. The mortgage introduced by appellant, after setting out and specifically describing certain items of personal property upon which said mortgage was given, uses the following language: "Also all the household furniture, dishes, linens, silver and chinaware and everything in the house specified `Padelford House' or that may be put in there by Mrs. Allen to use as house furnishings any time hereafter until this mortgage has been settled." The evidence, without contradiction, showed that the property described in the affidavit in question had been located in the Padelford House, and whether this property was embraced in the mortgage given by appellee to the appellant was one of the principal questions in the case. Mrs. Hardin, a witness for the appellant, testified that the appellee sold to her at the Padelford House, at which house the appellee was living and keeping boarders, on the night before the boarding house was closed by appellee, the particular property described in said affidavit, and there was also evidence that appellee purchased of appellant, and perhaps of other parties, after the execution of the mortgage, some household goods and placed them in the Padelford House.

In a court of law a mortgage upon personal property not owned by the mortgagor at the date of the mortgage is void, unless, after the mortgagor subsequently acquires title thereto, some act be done indicating a purpose to bring it within the terms of the mortgage. This rule at law is based upon the fact that a mortgage is a conveyance of the title to the mortgagee, and title cannot be conveyed where the mortgagor has none. Therefore it has been held consistent with these principles that a mortgage of goods which the mortgagor does not own at the time the mortgage is executed, though he afterwards acquires them is void. This doctrine, however, is confined to suits at law and in equity, "where one agrees to execute a mortgage on certain property, and at the time he is called upon to perform his agreement he has the ability to do so," he will either be compelled to execute it, or, in a suit to enforce the lien, equity will enforce the agreement as a mortgage. So that, while a court of equity will not make a contract or create a lien for the parties, it will enforce a mortgage lien upon property under a general description, such as is found in appellant's mortgage when it can clearly be determined that the parties at the date of the mortgage intended it should become subject to such lien when acquired by the mortgagor. Richardson v. Washington, 88 Tex. 345, 31 S. W. 614. We are of opinion that the evidence in the case at bar shows very clearly that at the time appellant's mortgage was made both the appellant and the appellee anticipated the acquisition by appellee of household goods other than those particularly described in said mortgage and such as is mentioned in the affidavit, the basis of this action, which they intended should become subject to the lien of said mortgage, under the general property description contained therein. That such was in contemplation and intended by the parties to the mortgage may be unerringly inferred or deduced from the otherwise unusual and superfluous provision in the mortgage itself, to the effect that a lien was thereby given to appellant upon all the household furniture, dishes, silver, and chinaware, and everything in the house, known as the "Padelford House," at the time of the execution of the mortgage, or that which was thereafter put in said house by Mrs. Allen, before the mortgage was paid off and satisfied, to be used as household furnishings. It follows, therefore, that the general description in the mortgage was sufficient to include any property of the kind referred to therein; that the jury would have been warranted in finding that said mortgage created and fixed a lien upon the property described in said affidavit, although said property was not specifically described in said mortgage; and that the court erred in charging the jury to the contrary.

The following paragraph of the court's charge is assigned as error: "Upon the issue of the defendant consulting Mason Cleveland, the county attorney of Johnson county, you are instructed that, if...