Ferrell-Michael Abstract & Title Co. v. McCormac

215 S.W. 559, 1919 Tex. App. LEXIS 1061

• Court: Texas Commission of Appeals
• Decided: November 12, 1919
• Docket: No. 106-2947
• Status: Published

Opinion

SADLER, J.

The question involved in this case is with reference to the priority of a laborer’s lien arising subsequent to an existing chattel mortgage lien, against certain property owned by the plaintiff in error. Mrs. C. B. McCormac, who held a note secured by a chattel mortgage on the property, sought to foreclose her lien in the district couft. George and Nora Vaught were made parties on the allegation that they held the property, or asserted a claim thereto, by virtue of a judgment in the justice court establishing an indebtedness for labor and a laborer’s lien against the property. They filed answer disclaiming any interest in the property. The facts out of which the judgment in the justice court arose occurred subsequent to fixing and recording the chattel mortgage securing the indebtedness of Mrs. McCormac. It appears that after the rendition of the justice court judgment, R. L. Davenport fixed a laborer’s lien against the property. Mrs. McCormac, acting in the view that the laborer’s lien takes precedence over a prior chattel mortgage lien, endeavored to defeat the effect of the justice court judgment by showing that it was absolutely void.

For a full statement of the controversy, we refer to the opinion by the Court of Civil Appeals, 184 S. W. 1081.

Since thé writ was granted in this case, in an opinion by Justice Greenwood in American Type Founders Co. v. Nichols et al. (Sup.) 214 S. W. 301, it has been held that an existing mortgage lien is superior to an after acquired and established laborer’s lien. In. that case it is said:

“The effect of our decision is to subject to the employé’s lien the property created by or necessarily connected with the performance of his labor, as that property stood at the time of his employment. But we decline, in the absence of clear language requiring it, as have most of the courts of last resort in the United States, to extend the employé’s lien so as to attach to, and diminish or destroy, the interest or right of an innocent lienholder, which had vested prior to the employment, and of which the employé was chargeable with notice.”

We think this question decisive of the instant ease. Whether or not the judgment of the justice court is void is immaterial, and we express no opinion thereon.

In our view of the facts and pleadings, Mrs. McCormac is entitled to the recovery for-her debt against J. M. Ferrell as principal and J. R. Stubblefield as surety, with a foreclosure of the chattel mortgage lien against the property described therein as to all parties to the litigation.

R. L. Davenport is entitled to recover his debt, with a foreclosure of his laborer’s lien as to $60 thereof, such foreclosure, however, to be subject to the prior lien of Mrs. Me-Cormac.

We, therefore, recommend that the judgment of the Court of Civil Appeals, and the judgment of the trial court be affirmed. ‘

PHILMPS, C. J.

The judgment recommended by the Commission of Appeals is adopted, and will be entered as a judgment of the Supreme Court.