Stiles v. Hill, Fontaine & Co.

• Decision Date: 18 November 1884
• Docket Number: Case No. 1766.
• Citation: 62 Tex. 429
• Court: Texas Supreme Court
• Parties: S. R. STILES ET AL. v. HILL, FONTAINE & CO.

62 Tex. 429

S. R. STILES ET AL.

v.HILL, FONTAINE & CO.

Case No. 1766.

Supreme Court of Texas.

Nov. 18, 1884.

APPEAL from Red River. Tried below before the Hon. R. R. Gaines.

Rogers & Atkinson, merchants at Walker Station in Red River county, became indebted to Hill, Fontaine & Co., the appellees, in the sum of $840. To secure this debt, P. H. Rogers, for the firm (Atkinson acquiescing), executed to appellees an instrument conveying to the latter their entire stock of goods and giving them immediate possession, with the power to sell the same, until a sufficient amount had been realized from the goods to pay off this indebtedness, when the residue of the property was to be turned over to Rogers & Atkinson. In accordance with this instrument, S. J. Johnson, as appellees' agent, took possession for them, and appointed Rogers and J. A. Mosely to sell the goods. Immediately afterwards, S. R. Stiles, sheriff of Red River county, levied upon and seized the goods by virtue of an attachment issued out of the district court of Red River county against Rogers & Atkinson, and sold the same under an order of sale from the judge of that court. The value of the goods seized was $2,000. Appellees brought this suit against Stiles, the sheriff, and the sureties on his official bond, for damages for wrongful attachment of goods, and recovered a judgment for the amount of their debt, with costs.

Taylor & Chambers, for appellants.

Dudley & McDonald and Sims & McDonald, for appellees.

STAYTON, ASSOCIATE JUSTICE.

The instrument through which Hill, Fontaine & Co. claim to have acquired rights does not bear on its face any evidence whatever that it was intended to operate as an assignment for the benefit of creditors under the act of March 24, 1879.

On the contrary, it purports to be just what it is, a mortgage with power to sell given to secure a debt which its makers, Rogers & Atkinson, owed to the appellees, and it carried with it all the incidents of such a mortgage, whether expressed or not.

In La Belle Wagon Works v. Tidball, Van Zandt & Co., 59 Tex., 292, it was held that the act of March 24, 1879, in no manner interfered with the long recognized right of a debtor to give preferences to one or more creditors; and that the sole prohibition to the giving of such preferences contained in that act related to preferences attempted to be given in assignments made under its provisions; and we see no reason to doubt the correctness of the conclusion reached...