Wallis v. Adoue

• Decision Date: 04 February 1890
• Parties: WALLIS <I>v.</I> ADOUE <I>et al.</I>
• Court: Texas Supreme Court

13 S.W. 63

WALLISv.

ADOUE et al.

Supreme Court of Texas.

February 4, 1890.

Commissioners' decision. Appeal from district court, Galveston county; WILLIAM M. STEWART, Judge.

Davis & Davidson and F. D. Minor, for appellant. Waul & Walker, for appellees.

HOBBY, J.

Adoue & Lobit, who were bankers in the city of Galveston, sued R. P. Sargeant and George Anderson, who, under the firm name of Sargeant & Co., were engaged in the drayage business in the same city, to recover a debt of about $6,500, and to foreclose, as against them and appellant, two mortgages, conveying the personal property described in the petition, given to secure said debt. The mortgages were executed, respectively, on June 3 and December 16, 1886. No defense was made by Sargeant & Co. It was alleged that appellant had purchased the mortgaged property at an execution sale under a judgment in her favor rendered in the district court of Galveston county against R. P. Sargeant, and that she had actual and constructive notice of appellees' lien. Appellant, Kate Lee Wallis, answered, alleging an indebtedness to her by Sargeant prior to and since the execution of the mortgages, and the recovery of a judgment by her, against him, in the district court of Galveston county, for about $3,021.98, on November 22, 1886, and the purchase of the mortgaged property under execution issued on said judgment April 4, 1887, and that the mortgages executed to appellees were fraudulent," etc.

It appears from the evidence that there had been frequent and extensive business transactions between the firm of Sargeant & Co. and appellees from August, 1885, up to and including the time of the execution of the mortgages, resulting in an indebtedness to appellees on June 3, 1886, of about $5,500. The mortgage of that date was executed to secure a note for $1,000, which sum was then advanced to Sargeant & Co. Although the latter firm were largely in debt to appellees at that time, only the $1,000 mentioned was secured by the mortgage. On the 16th December, 1886, the indebtedness of Sargeant & Co. to appellees had reached the sum of about $9,269.96, and a second mortgage was executed, which appears to have taken the place of the former. This latter mortgage, however, secured only the sum of $5,500, consisting of two notes, — one for $3,000, and one for $2,500. One thousand dollars of this indebtedness consisted of that amount, paid to Sargeant & Co. on that day, December 16, 1886; and the balance, $4,500, was money owing to appellees by Sargeant which accrued between June 3 and December 16, 1886. The property embraced in the second mortgage was the same as that conveyed in the mortgage of June 3, 1886, with the addition of eight mules, seven floats and harness, and one dray and harness. There was testimony to the effect that the property...