sideration was to be paid by H. R. Pugh and | signed and duly acknowledged by said Pugh J. W. Light to plaintiff, he having advanced and Light and the wife of Light was on the entire purchase price, and was evidenced by seven vendor's lien notes executed by H. R. Pugh and J. W. Light in the sum of $200 each and payable to plaintiff, and to secure said notes a vendor's lien was expressly retained in said deed, and said deed was duly recorded in the deed records of Parker county on the 12th day of July, 1910. “4. On the 23d day of November, 1911, the said H. R. Pugh was indebted to the defendant J. M. Hart in the sum of $385.10, and on said date executed and delivered to said J. M. Hart his note in writing for said sum of $385.10 due October 1, 1912, with interest from date at the rate of 10 per cent. per annum, and on said 23d day of November, 1911, the said H. R. Pugh by his chattel mortgage in writing conveyed to said J. M. Hart the following described property: 'My first eight bales of cotton raised next year, 1912, raised on my farm nine and one-half miles from Weatherford on Toto Road, said eight bales to weigh five hundred pounds and to be free from all other liens, said cotton to be raised in the field north of the house. I am to plant thirty acres and work in a farmer-like way.' Said mortgage provides that it is given to secure said note for $385.10 and to cover any and all other amounts that the said Pugh then owes and might thereafter become indebted to and owe the said J. M. Hart, such as book accounts, etc., and said mortgage was on the 23d day of November, 1911, duly filed for record in the office of the county clerk of Parker county, Tex., and was on said date filed on the chattel mortgage records for said county. "5. The said J. M. Hart after the 23d day of November, 1911, and on faith of said mortgage, sold supplies to said H. R. Pugh in the sum of $49.05 and received payment thereon in the sum of $11.70, and at the institution of this suit there was due on said account a balance of $37.35. "6. At the institution of this suit the said H. R. Pugh was indebted to the said J. M. Hart in said sum of $385.10 with interest thereon at the rate of 10 per cent. per annum, on the 23d day of November, 1911, and the additional sum of $37.35, balance on said account. "7. On the 26th day of March, 1912, the said H. R. Pugh and J. W. Light on good faith by their deed in writing conveyed to the plaintiff the 70 acres of land which had been conveyed to them by said F. M. Copps as aforesaid, and said conveyance was made in consideration of the cancellation and surrender by plaintiff to said Pugh and Light of said seven vendor's lien notes then held by plaintiff in the sum of $200 each with all interest due thereon. The amount due by said Pugh and Light on said notes to plaintiff was the full value of said seventy acres of land. The wife of said J. W. Light joined her husband in said deed, and said deed said 26th day of March, 1912, delivered to plaintiff with the understanding that, if plaintiff desired, the wife of Pugh would come in thereafter and sign and acknowledge the deed; and thereafter on the 28th day of September, 1912, the wife of said Pugh signed and duly acknowledged said deed when same was presented to her for her signature by plaintiff, and said deed was duly recorded in the records of Parker county on said 28th day of September, 1912. On said 26th day of March, 1912, the wife of Pugh was prevented by sickness from coming to town and joining in the execution of said deed, but then fully approved of said conveyance for said consideration. "8. On the 26th day of March and immediately after the delivery of said deed by said Pugh and Light to plaintiff, the said Pugh and Light and plaintiff entered into a rental contract in writing, whereby the plaintiff, in consideration of the sum of $144.50 to be paid by said Pugh and Light, rented and leased the said 70 acres to said Pugh and Light for and during the term beginning on the 26th day of March, 1912, and ending on the 31st day of December, 1912, and at the same time the said Pugh and Light executed and delivered to plaintiff their joint note for the sum of $144.50 of date March 26, 1912, and payable to plaintiff on the 1st day of November, 1912, in the sum of $144.50, with interest from maturity at the rate of 10 per cent. per annum, and providing for 10 per cent. as attorney's fees, if collected by suit or placed in the hands of an attorney for collection, and by the terms of said rental contract it was expressly agreed that plaintiff should have his preference landlord's lien as provided by the statutes to secure his rent, and in said rental contract plaintiff gave to Pugh and Light an option of buying back said 70 acres of land upon certain conditions any time prior to January 1, 1913, which option was forfeited. "9. The said J. M. Hart had no notice of the sale of said land by Pugh and Light to plaintiff until after the first four bales had been gathered by Pugh from the said field north of his house and had been brought to market, and of said account advanced by said Hart to said Pugh after the execution of said mortgage as aforesaid the sum of $18 had been so advanced after the 26th day of March, 1912. "10. The said 70 acres of land was rented by plaintiff to said Pugh and Light jointly, but the said Pugh by agreement with Light worked and cultivated the north half of said tract and the said Light by agreement with said Pugh worked and cultivated the south half of said tract, during the year 1912, but the plaintiff had nothing to do with said agreement between Pugh and Light. "11. During the year 1912, said Pugh rais from the north half of the plaintiff's 70-acre tract was superior to plaintiff's landlord's lien. The plaintiff has appealed. ed and gathered from the north half of said the six bales of cotton gathered by Pugh 70 acres six bales of cotton, all of which was of the value of $300, and all of which was appropriated by said Hart and applied by him on said indebtedness due him by said Pugh, and all of said six bales of cotton were gathered from the field on which said Pugh had given said Hart a mortgage as aforesaid. "12. On the 26th day of March, 1912, when said Pugh and Light conveyed said 70 acres of land to plaintiff, no crop had been planted on said land, and all cotton grown on said land during the year 1912 was planted after the execution and delivery by said Pugh and Light to plaintiff of said deed on the 26th day of March, 1912. "13. No part of the rents due by said Pugh and Light have been paid, but defendant J. W. Light tendered to plaintiff, Ivy, one-half of the amount of the rental note sued on prior to trial in justice court upon condition that he be released from further liability on the note. "14. This suit was instituted in less than 30 days after the removal of the first three bales of cotton from the Ivy premises and before the last three bales had been removed. "15. In the field north of the house referred to in said mortgage there was one patch of cotton of about 18 acres directly north of the house, and another patch of 20 acres in the same field northwest from the house, and the eight bales of cotton taken by J. M. Hart were gathered from this 20-acre patch, six bales off the Ivy land, and two bales of the home tract of Pugh, purchased by him from Burns; but all the cotton was grown in one inclosure or fence north of the house, though in two patches. "16. This suit was instituted by plaintiff, W. T. Ivy, in the justice court of precinct No. 1 in this county against the defendants H. R. Pugh and J. W. Light, for rents on said 70acre tract of land, known as the Ivy tract, for the year 1912 in the sum of $144.50 and interest and attorney's fees as evidenced by said rent note and for a foreclosure of his landlord's lien on all cotton grown by said Pugh and Light on said land during the year 1912, and against the defendant J. M. Hart; the plaintiff alleging that said J. M. Hart had converted to his own use and benefit part of said crop and was setting up some sort of claim or lien against all of said crop, and prayed for judgment on said rent note and for foreclosure of his landlord's lien and for judgment against said Hart for such part of said crop as had been converted by said Hart, and for judgment declaring said landlord's lien to be superior to the mortgage lien of said J. M. Hart. The pleadings of the plaintiff in said justice court and in this court were oral." Upon these facts the trial court held that the mortgage lien of the defendant Hart on We think the holding of the trial judge was error. [1] It is well settled in this state that a chattel mortgage executed upon property at the time not in existence may become operative if the property covered subsequently comes into the possession of the mortgagor. This, however, is not upon the ground that the execution of such instrument creates at the time a valid lien upon the thing mortgaged, for in the supposed case the thing mortgaged is not in existence, and necessarily there can be no lien against it. It is rather upon the equitable principle of estoppel, or, as it is sometimes expressed, that the subsequent acquisition of the property feeds the mortgage. [2] It is equally well settled, under the peculiar rule of decision in this state, that the vendor of real estate retains the superior title until the purchase money is paid. [3] Bearing in mind these rules of decision, we hold that appellant's landlord's lien is superior to appellee Hart's mortgage lien. Appellee's mortgage lien became effective upon the planting and growing by defendant Pugh of the crop embraced in its terms, but it was effective only to the extent of the interest owned by said Pugh in the crops. Pugh could in no event convey a greater title than he had, which, under the operation of our landlord's lien act (Revised Statutes 1911, art. 5475), was one subject to the lien of the landlord for rents. In other words, he never acquired an absolute title to the property previously mortgaged, but only a qualified title. So that the mortgage in the very nature of things could only operate upon the limited ownership of the mortgagor. See Neblett v. Barron (No. 6,236) 160 S. W. 1167, not yet officially reported. The principle which controls us is illustrated in the case of New Orleans & O. Ry. Co. v. Mellen, 12 Wall. 362, 20 L. Ed. 434, holding that a mortgage by a railroad company covering all its future acquired property attaches only to such interest therein as the company acquires, subject to any liens under which it comes into the company's possession. A contrary conclusion upon facts very similar has been reached by the Supreme Court of Alabama (Hamilton v. Maas, 77 Ala. 283), but the decision in that case appears to be based in part upon a statute which is not before us, and furthermore proceeds upon the theories that the purchaser of lands not paid for is the owner thereof, and that the mortgagee of chattels takes the legal title thereto, which theories are not in consonance with the decisions of this state. The judgment of the county court is reversed, and upon the facts stated judgment is here rendered in favor of appellant against appellee J. M. Hart for the amount of his debt against defendants Pugh and Light; that amount being less than the established value of the property converted. Reversed and rendered. BURNS & BELL v. LOWE et al. (Court of Civil Appeals of Texas. Ft. Worth. Nov. 22, 1913.) 1. GARNISHMENT (§ 105*)-GARNISHING CREDITORS RIGHTS. Garnishing creditors occupy no better position with reference to the fund garnished than did their debtors at the service of the writ. [Ed. Note.-For other cases, see Garnishment, Cent. Dig. § 216; Dec. Dig. § 105.*] 2. GARNISHMENT (§ 108*) — BANK DEPOSIT OWNERSHIP OF FUND. lows: "The uncontroverted evidence in this case shows that the rent item of $113 included in said $363 check was included in the deposit of Belle Lowe in the City National Bank of Colorado, Tex., and was paid out by said bank cashing said check. As to this item I charge you that the same was the property of W. L. Lowe, though deposited in said bank by Belle Lowe among other funds deposited in her name and was not subject to the garnishment herein, and as to this item the plaintiffs would not be entitled to recover." It is complained that this charge is erroneous because the item of $113 was community property of defendant C. C. Lowe and his wife, Belle Lowe, at the time of the service of the writ and was therefore subject to appellant's demand. The facts, L., being indebted for rent, delivered to his however, appear to be undisputed that C. wife $113, the proceeds of his crops, with in- C. Lowe was indebted to W. L. Lowe, his structions to pay it to the landlord. She in- landlord, for rents and delivered this sum stead deposited the amount in a bank to her credit and later drew against the fund in fa- of money, the proceeds of farm products vor of the landlord a check for a larger am- grown by him, to his wife, with instructions ount, containing the $113. After delivery of to deliver the same to W. L. Lowe. Mrs. the check, but before it was paid, the account in the bank was garnished in suit against L. Lowe deposited this sum in the bank beHeld that, to the extent of the $113 so deposit- cause she did not care to keep that amount ed, the rights of the landlord were superior to of money around the place and gave to W. those of the garnishing creditor, though the check be not regarded as an equitable assign-L. Lowe her check for $363, covering this ment of so much of the funds to the wife. and other items of indebtedness. It is un[Ed. Note. For other cases, see Garnishment, disputed that this check was drawn by Mrs. Cent. Dig. §§ 220-226; Dec. Dig. § 108.*] Lowe and accepted by W. L. Lowe prior to 3. PARENT AND CHILD (§ 9*)-EMANCIPATION. the service on defendant bank of the writ of A father may make a valid gift to his garnishment, though the bank had not paid minor son in the absence of complaint by an existing creditor that the gift is fraudulent, or accepted for payment the check. whether the son has been emancipated or not. [Ed. Note.-For other cases, see Parent and Child, Cent. Dig. §§ 74, 111-135; Dec. Dig. § 9.*] [1] In this state of the evidence there was no error in the charge quoted, since appellants, as garnishing creditors, could occupy no better position with reference to the fund Appeal from District Court, Mitchell Coun- than did their debtor at the time of the servty; W. W. Beall, Judge. Garnishment proceeding by Burns & Bell against C. C. Lowe and others. Decree for defendants, and the plaintiffs appeal. Af firmed. L. W. Sandusky and C. H. Earnest, both of Colorado, Tex., for appellants. Royall G. Smith, of Colorado, Tex., for appellees. SPEER, J. This is a garnishment suit wherein Burns & Bell, judgment creditors of C. C. Lowe, sought to hold City National Bank as garnishee; the fund in controversy being a deposit of $408.36 in the name of Mrs. Belle Lowe and the sum of $10 in the name of Ruel Lowe. The bank answered, disclosing these deposits, but alleging that the one was the separate property of said Belle Lowe and the other the individual property of said Ruel Lowe, and otherwise denying any indebtedness or liability to C. C. Lowe. The answer was traversed by the plaintiffs, and on the issues thus presented a trial was had before a jury resulting in a verdict and judgment against the plaintiffs, and they have appealed. ice of the writ. [2] Equity will not aid the statutory remedy of a garnishment, and, even though it should be held that the drawing of the check was not an assignment pro tanto of the funds of Mrs. Lowe in the bank in the sense that the bank could be sued on the same prior to acceptance, still as between C. C. Lowe and W. L. Lowe, and necessarily between appellants and W. L. Lowe, since appellants take the place of C. C. Lowe, the rights. of W. L. Lowe are superior and the bank would not be liable to the writ. Neely v. Grayson County Nat. Bank, 25 Tex. Civ. App. 513, 61 S. W. 559; N. Y. Life Insurance Co. v. Patterson, 35 Tex. Civ. App. 447, 80 S. W. 1058. [3] The remaining assignments in effect attack the sufficiency of the evidence to support the verdict finding that the deposits belonged, respectively, to Mrs. Lowe and Ruel Lowe. The evidence, we think, abundantly supports the conclusion that the small item of $10 to the credit of Ruel Lowe was a gift by the father to the son for minor services, and it is immaterial whether the son On the trial the court instructed as fol- had been emancipated by the father or not. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes by the usual plea of "not guilty," and relied on a record title to the land, which it was admitted was regular, from the city of San Antonio down to and including them. At all events, the father could make a valid | years' statute. Plaintiffs in error answered gift even to his minor son, in the absence of a complaint by an existing creditor that such gift was fraudulent and void. There is no such complaint in this case. The evidence furthermore supports Mrs. Lowe's contention that the deposit in her name was a fund paid to her by her husband in repayment of borrowed money, the proceeds of an inheritance from her father. [1, 2] At the conclusion of the testimony, the court instructed the jury to return a verdict in favor of Mrs. Baugh, the plaintiff there, which was accordingly done. Whether the court was correct in so instructing the There is no error in the judgment, and it jury is the issue before this court. If the is affirmed. ZIMMERMANN et al. v. BAUGH. (Court of Civil Appeals of Texas. tonio. Dec. 17, 1913.) 1. TRIAL (§ 139*)—QUESTIONS FOR JURY-DIRECTED ERDICT. The court should not direct a verdict on an issue of fact unless the evidence shows that reasonable men could not draw a different conclusion. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 332, 333, 338-341, 365; Dec. Dig. § 139.*] 2. ADVERSE POSSESSION (8 115*)-ACTIONSEVIDENCE. evidence is such that reasonable minds would not differ as to the facts established, the court was correct in giving the instruction. Let us, then, see what the evidence is. Mrs. W. Pauline Baugh, the plaintiff below, San An- testified that she had owned lot 5, block 18, N. C. B. 525, twenty-seven years; that she inherited it from the Kelleys in 1885, and they had bought the property from Elliston. She says: "I meant this part in controversy -this part was all fenced and is fenced now, and has been ever since I came to San Antonio, which was in 1877." Her evidence is, further: That she had had the property fenced in with, lot 5 twenty-eight years and had kept it rented out; the part in controversy being used as a passageway for her tenants in going to and coming from Chestnut street. "That fence I had was up there until two years ago. It had been repaired from time to time. It was standing up there until Mrs. Zimmermann changed the line. Q. Do you know who lived on that little piece of ground that inclosed the red triangle (the land in controversy)? A. Well, there was a man by the name of Pieper. He didn't live on it; he rented it out. I do not know who had it prior to that; I do not know who his tenants were. They have had tenants there about 28 years, I presume." The witness, upon redirect examination, said she had reference to the large triangle, but not the land in dispute, which she said she and those under whom she held had had fenced since 1877 when she came to San Antonio. In trespass to try title, where plaintiff 3. EVIDENCE (§ 213*)-ADMISSIONS-TITLE. [Ed. Note.-For other cases, see Evidence, Action by W. Pauline Baugh against Bridget Zimmermann and others. There was a judgment for plaintiff, and defendants bring error. Reversed and remanded. See, also, 160 S. W. 593. Don A. Bliss, of San Antonio, for plaintiffs in error. Augustus McCloskey and Alex C. Bullitt, both of San Antonio, for defendant in error. J. W. Houston, who was called by defendant in error, said he had lived in San Antonio 34 years and had known this property all his life. He says: "I remember well the location of the fence of that property with * * The defendant in error, Mrs. reference to the streets. CARL, J. # I know W. Pauline Baugh, brought this suit in tres- there was a fence in there through to what pass to try title against plaintiffs in error, we called McGowan's. The fence did not Mrs. Bridget Zimmermann, Florence, and take in the little triangle (property in conMinnie Zimmermann, the land in controver- troversy). The little triangle wasn't there sy being a small triangular piece out of what then; Baugh's fence didn't fence in any triis designated as the north part of lot 7 in angle. It came to the point of the triangle block 18, New City block 525, in the city of and stopped at the triangle, and the triangle San Antonio, Bexar county, Tex., and is more extended about three or four feet from the fully described by metes and bounds in plain- south fence of the Baugh property. No sir, tiff's (defendant in error's) petition. The the south fence was not a little longer, the plaintiff below asserted title in herself under north fence was the longer; and, when this the three, five, and ten years' statutes of south fence came down, it struck a little trilimitation, but relied in the proof on the ten angle, just a little nose of a property that For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes came in there just like the point of the tri- Mrs. Baugh may have offered $35 for a deed angle." * J. R. Studer, for plaintiffs in error, said that he had resided near the property for close to 20 years. He says that Pieper fenced the entire block 7. "I don't know who built that cross-fence. There was a closet built back there somewhere. My father-inlaw (Pieper) had it done. There was no fence which included that when it was built 16 to 18 years ago. When that closet was built, the fence did not come right along the side of Chestnut street. It was open-most of the years there was nothing at all. I don't remember any more whether when the fence was put up across there they tore down any portion of the old fence that I have said fenced in the entire lot 7. I patched it up so much I got disgusted. * I don't know when the fence running across was built so as to cut off this little piece (in controversy). Whoever did that did it without my knowing anything about it. When I first knew of it was maybe six or eight years ago." Studer says that 16 or 18 years ago the land in controversy was open, and he also says that the north corner of the land in dispute is in the same place it has always been and has not been changed. "I knew that the land in controversy was inside my father-in-law's fence at the time I first knew it (about twenty years). There was not any cross-fence there just prior to that time. It was fenced at the time he (Pieper) bought it." So the state of the evidence is that Mrs. Baugh says her fence was up there until about two or three years ago, when it was knocked down. Houston says this little triangle was out, not fenced at all when he can first remember, and he is 34 years old. Studer says Mrs. Baugh's fence was not there when Pieper bought the property about 20 years ago, and that Pieper built a closet on the property in controversy about 18 years ago. He says further that it was under fence before Pieper bought it. We think the condition of the evidence was such that reasonable minds might honestly differ, and that the court erred in refusing to submit the case to the jury. Choate v. Railway, 90 Tex. 88, 36 S. W. 247, 37 S. W. 319; Mustain v. Stokes, 90 Tex. 358, 38 S. W. 758. "It is only when it is so clearly established from the undisputed testimony as to admit of no other reasonable hypothesis or conclusion that either a fact essential to plaintiff's action is not proven, or one which is a complete defense has been shown, that it becomes the duty of the court to instruct a verdict for the defendant." Southern Pacific Ry. Co. v. Winton, 27 Tex. Civ. App. 514, 66 S. W. 483, and cases cited. The possession and use by Mrs. Baugh is not so conclusively shown as to take the case from the jury. from the plaintiffs in error to this property. Citizens have a right to clear their titles of those things which would hinder a sale, and, if they have title to the property, a mere attempt to remove clouds therefrom would not affect the title they already have. This court so held in Cuellar v. Dewitt, 5 Tex. Civ. App. 568, 24 S. W. 671, and has recently reaffirmed the same doctrine. Since we have concluded to reverse the judgment, it is not necessary to pass on any other questions raised. The judgment is reversed, and the cause remanded. CLEGG et al. v. ROSCOE LUMBER CO. Amarillo. (Court of Civil Appeals of Texas. Dec. 13, 1913.) 1. LIMITATION OF ACTIONS (§ 123*)—TOLLING STATUTES-PENDING ACTION. The pendency of an action will prevent the running of limitations, though the petition be until after the period of limitation has elapsed; bad on general demurrer, and is not amended and the fact that when plaintiff corporation filed an action on the notes sued on, it was not legally entitled to sue under Rev. Civ. St. 1911, art. 7399, because it had not paid its franchise tax, would not cause the action to be barred by the four-year limitation, though before an amended petition was filed showing compliance with the statute more than four years had elapsed since maturity of the last note. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. § 539; Dec. Dig. § 123.*] 2. ABatement and REVIVAL (§ 22*)—PLEA IN ABATEMENT-RIGHT TO SUE. paid its franchise tax, so that it was not enThe fact that plaintiff corporation had not titled to maintain an action under Rev. St. art. 7399, could only be urged by a plea in abatement. and Revival, Cent. Dig. 88 148-156; Dec. Dig. [Ed. Note.-For other cases, see Abatement § 22.*] Appeal from Potter County Court; W. M. Jeter, Judge. Suit by the Roscoe Lumber Company against Mida Clegg and another. From a judgment for plaintiff, defendants appeal. Affirmed. Cooper, Merrill & Lumpkin, of Amarillo, for appellants. Gustavus & Jackson, of Amarillo, for appellee. HALL, J. This suit was filed in the county court of Dallas county, July 14, 1910, by appellee lumber company, praying recovery upon three notes in the sum of $100 each, dated October 1, 1907, and payable February 1, 1908, October 1, 1908, and February 1, 1909, respectively, bearing interest at 8 per cent. per annum from date, and stipulating for the usual 10 per cent. attorney's fees. Appellants, Mida Clegg and Mrs. Emma Tydeman, being residents of Potter county, filed [3] It is a matter of no consequence that their pleas of privilege in Dallas county in For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |