West Development Co. v. Crown Bottling Co., 1723.

• Decision Date: 30 January 1936
• Docket Number: No. 1723.,1723.
• Citation: 90 S.W.2d 887
• Parties: WEST DEVELOPMENT CO. et al. v. CROWN BOTTLING CO. et al. (STATE NAT. BANK OF WEST, Intervener).
• Court: Texas Court of Appeals

90 S.W.2d 887

WEST DEVELOPMENT CO. et al. v. CROWN BOTTLING CO. et al. (STATE NAT. BANK OF WEST, Intervener).

No. 1723.

Court of Civil Appeals of Texas. Waco.

January 30, 1936.

Rehearing Denied February 20, 1936.

Appeal from District Court, McLennan County; D. W. Bartlett, Judge.

Suit by the West Development Company and others against the Crown Bottling Company and others, wherein the State National Bank of West, successor to the receiver of the National Bank of West, intervened. From a judgment, plaintiff and another appeal.

Affirmed.

S. J. T. Smith and Munroe & Holt, all of Waco, for appellants.

John B. McNamara, of Waco, and George Kacir, of West, for appellees.

ALEXANDER, Justice.

This suit was brought by the West Development Company, a corporation, against John F. Popp and John B. Dulock, individually, and as partners alleged to be operating under the firm name of Crown Bottling Company, to recover certain rents claimed to be due the plaintiff for the use of a building rented for commercial purposes and to foreclose a landlord's lien on the tenants' property in the building. The receiver of the National Bank of West was made a party defendant. Its successor, the State National Bank of West, intervened.

Briefly stated, the facts are these: John F. Popp, as sole owner of Crown Bottling Company, leased the building in question from West Development Company by written lease for commercial purposes for a term beginning June 4, 1931, to May 31, 1932, at $25 per month. On February 1, 1932, John B. Dulock purchased from Popp an undivided one-half interest in Crown Bottling Company and became a member of the firm. The lease on the building was not renewed at the end of the term, but Crown Bottling Company continued to occupy it and to pay rent at $25 per month until July 8, 1932, at which time Dulock sold his interest to one Bridges on credit and reserved a lien on an undivided one-half interest in the fixtures and equipment used by Crown Bottling Company to secure the payment of the unpaid purchase price. At that time the partnership relation between Dulock and Popp was dissolved and Bridges became a member of the firm. The new firm ceased to pay rent on September 1, 1932. On June 1, 1933, West Development Company entered into a verbal contract with Popp as agent for Crown Bottling Company by which the latter was to be allowed to continue to occupy the building at $12.50 per month, but was to pay $25 per month, one-half of which was to cover current rent and the balance to be applied to the account for past-due rent. Only one payment of $25 was made under this contract. Crown Bottling Company continued to occupy the building without actually paying any rent until this suit was filed on August 8, 1934. In the meantime, on March 1, 1933, Popp executed and delivered to said bank a note for borrowed money and secured the same by a lien on his one-half interest in the fixtures and equipment used by Crown Bottling Company. This mortgage was registered forthwith. On September 1, 1933, Bridges, being unable to pay for his one-half interest in the partnership, reconveyed to Dulock an undivided one-half interest in the fixtures and equipment used by Crown Bottling Company in settlement of his indebtedness to Dulock, and on September 13, 1933, Dulock brought a suit against Popp for a partition of the fixtures and equipment used by said Bottling Company. West Development Company did not file with the county clerk an affidavit covering its unpaid rent until August 8, 1934. Dulock denied all liability for rent. The bank sought judgment against Popp for its debt and claimed a prior lien on Popp's interest in the fixtures and equipment belonging to Crown Bottling Company.

A trial before the court without a jury resulted in judgment in favor of the bank against Popp, individually, for the debt evidenced by his note, with a foreclosure of its mortgage lien as a first and prior lien on Popp's one-half interest in the fixtures and equipment belonging to the bottling company. The plaintiff recovered a judgment against Popp, individually, for its unpaid rent, with a foreclosure of the landlord's lien as a second lien on Popp's one-half interest in the fixtures and equipment belonging to the bottling company. The plaintiff was denied any judgment against Dulock and was denied a right of foreclosure of its alleged landlord's lien against Dulock's one-half interest in the fixtures and equipment belonging to the bottling company. The West Development Company and Popp have appealed.

The West Development Company complains because the court decreed its landlord's lien to be second and inferior to the lien held by the bank. The bank's chattel mortgage on Popp's interest in the fixtures was executed and registered about March 31, 1933. At that time the West Development Company was entitled to a landlord's lien on Popp's interest in the fixtures used by Crown Bottling Company and situated in the building for...