Stewart & Alexander Lumber Co. v. Miller & Vidor L. Co.

• Decision Date: 05 January 1912
• Citation: 144 S.W. 343
• Parties: STEWART & ALEXANDER LUMBER CO. v. MILLER & VIDOR LUMBER CO. et al.
• Court: Texas Court of Appeals

144 S.W. 343

STEWART & ALEXANDER LUMBER CO. v. MILLER & VIDOR LUMBER CO. et al.

Court of Civil Appeals of Texas. Galveston.

January 5, 1912.

On Motion for Rehearing, February 1, 1912.

Appeal from District Court, Galveston County; Robt. G. Street, Judge.

Action by the Miller & Vidor Lumber Company against William A. Holloday and others, in which the Stewart & Alexander Lumber Company intervened. From a judgment sustaining a demurrer to its petition, intervener appeals. Reversed and remanded.

Ross & Wood, for appellant. Stewarts, Geo. T. Burgess, and J. E. Quaid, for appellees.

McMEANS, J.

The district court of Galveston county, in the case of Miller & Vidor Lumber Company v. William A. Holloday et al., having appointed a receiver of the Holloday-Shilkee Lumber Company, the appellant Stewart & Alexander Lumber Company intervened in the cause asking judgment upon two notes executed by said Holloday-Shilkee Lumber Company, and for foreclosure of a chattel mortgage securing the same. The court sustained exceptions to the petition of intervener urged by the plaintiff in the main suit, as well as a general demurrer urged by the receiver, and, the appellant declining to amend, judgment was rendered by the court against it, and from that judgment this appeal is prosecuted.

Appellant's petition of intervention alleges, in substance: That on or about May 1, 1909, the said Miller & Vidor Lumber Company conveyed to William A. Holloday a tract of 25 acres of land in Grimes county, Tex., together with the sawmill, planer, and machinery therein, and tramroad with about 2 miles of 20-pound rails, and certain standing timber or stumpage, which conveyance reserved a vendor's lien to secure the unpaid purchase money due thereon, and which vendor's lien notes were secured by a deed of trust upon the property conveyed. This lien did not purport to cover after-acquired property. That thereafter, on or about October 2, 1909, the said Holloday conveyed the said 25 acres of land and all of said personal property to said Holloday-Shilkee Lumber Company. That thereafter the appellant, Stewart & Alexander Lumber Company, sold to said Holloday-Shilkee Lumber Company two car loads of steel rails in payment for which said last-named company executed its two promissory notes to appellant dated December 6, 1909, one for $500 due in five months, and the other for $526.14 due in six months after date; said notes reciting that they were given for the purchase price of said rails, and that the title to same should not pass from said Stewart & Alexander Lumber Company until said purchase price was paid, and, further, that all lien rights were reserved by said last-named company. That the said rails were received by said Holloday-Shilkee Lumber Company and were by it laid, by themselves, in a temporary spur, and that the logs, for the removal of which said spur had been laid, had been moved, and there was no further use for same, and that said Holloday-Shilkee Lumber Company was preparing to take same up until prevented by the events hereinafter stated. That on June 8, 1910, said Miller & Vidor Lumber Company brought suit in the district court of Galveston county against said Holloday and said Holloday-Shilkee Lumber Company to foreclose its said vendor's lien notes, and on that day, upon application of Miller & Vidor Lumber Company, the court appointed a receiver for the Holloday-Shilkee Lumber Company, and a special master to hear interventions. It was further alleged: That no notice, general or special, was given to the creditors of the Holloday-Shilkee Lumber Company to intervene in said case, and that appellant was not a party to and had no notice of said suit. At the appearance term of said court and on October 17, 1910, the court, proceeding to try said case, rendered a judgment in favor of the Miller & Vidor Lumber Company for $40,516.57 upon its vendor's lien notes and adjudged the same to be a lien upon said 25-acre tract and said sawmill, and upon certain personal property and standing timber, and the "tram and tram equipment of every kind, character and description belonging and appertaining or in use in and about said sawmill, said tract lying partly in Grimes and partly in Waller county, together with all rolling stock and appliances thereto, including narrow-gauge logging cars, one locomotive, Fourney make, and about two miles of 25-pound steel rails, together with ties and appliances thereof." That the decree directed the receiver to sell the property. That the receiver took possession of said rails sold by appellant and laid in said spur track, and claimed the right to hold and sell same under said decree, and plaintiff, Miller & Vidor Lumber Company, also claimed its lien to extend to and cover said rails. That upon November 1, 1910, subsequent to the rendition of the judgment above stated, appellant filed its lien in the office of the county clerk of Grimes county. The petition concluded with a prayer for the title and possession of the rails, and in the alternative that intervener have judgment for the amount due upon said notes, and that the said lien be foreclosed.

We think the foregoing is a sufficiently full statement, in substance, of the allegations of the plea in intervention of appellant in view of the conclusions we have reached and which will be hereinafter stated. To this petition of the plaintiff, Miller & Vidor Lumber Company, the receiver urged general demurrers and several special exceptions, two of which, viz., E and F, which are, in fact, speaking demurrers, were sustained by the court. These exceptions are as follows: "E. It appears from the intervention that the notes were not filed forthwith nor in such time as to create a lien. F. It appears that plaintiff recovered judgment with foreclosure of lien on the rails described in the intervention (and that same are in custodia legis) prior to the filing by intervener of its alleged chattel mortgage." And the court sustained the general demurrer of the receiver upon the same grounds upon which said exceptions E and F were sustained. The action of the court in sustaining the demurrer and exceptions is made the basis of appellant's several assignments of error.

It will be seen from the allegations of the petition that the rails sold by appellant to the Holloday-Shilkee Lumber Company were not commingled with those upon which Miller & Vidor Lumber Company had a mortgage so as to render them indistinguishable from those covered by the latter's mortgage, but that they were laid by themselves in a different track or spur, and, this being true, they could be readily identified. It is also shown that, at the date of the execution of the mortgage or trust deed by Holloday to Miller & Vidor Lumber Company, the rails in question had not been purchased from appellant, nor were they in the possession of the mortgagor, and no intention to incorporate them in the mortgage can therefore be presumed. The petition expressly negatives any intention of Miller & Vidor Lumber Company to include in its mortgage any property thereafter acquired by Holloday or the appellant. The question that...