Landgrebe v. Schuehle

318 S.W.2d 491, 1958 Tex. App. LEXIS 1582

• Court: Court of Appeals of Texas
• Decided: November 19, 1958
• Docket: No. 13396
• Status: Published

Opinion

BARROW, Justice.

Appellant, D. H. Landgrebe, sued ap-pellee, Jake Schuehle, in the County Court of Medina County for the balance due on a note executed by one Robert W. Dean as a phrt of the purchase price for one used Studebaker automobile. Appellant alleged that said Robert W. Dean had traded the car to appellee as part payment on a new Ford automobile, and that appellee, Schu-ehle, had assumed the payment of the balance due on the note. The Studebaker was covered by a chattel mortgage, which lien was shown on the certificate of title,the possession of which certificate was retained by appellant at all -times pertinent to this suit. Appellant--did not seek a foreclosure of his lien, nor did he seek possession of the property or damages for conversion, but sought to recover the amount of the debt on the theory of assumption.

The case was tried to a jury and a verdict was rendered on special issues. The court, however, upon motion for judgment non obstante veredicto, rendered a take nothing judgment against appellant. This appeal is from that judgment.

It is not disputed that appellant had a valid chattel mortgage lien on the automobile in question and that appellee had both actual and constructive notice of the mortgage, and it is not disputed that the balance due on the indebtedness is $350.39. It is also undisputed that at the time Dean traded the automobile to appellee he represented to him that there was less than $200 due against the car.

The record further shows that after ap-pellee made the car trade with Dean he wrote a postal card to appellant,. as follows :

“Dear Sir:

“Mr. Robert W. Dean has traded in his Studebaker in to us on a new Ford, and we ask that you please send us the payoff figure on his note, as we would like to pay it off.

“Thanks

“Jake Schuhle

“Hondo, Texas

“,/S/ Jake Schuehle”

The rights and liabilities of a purchaser of mortgaged chattels are well settled. Where the purchaser has, or is charged in law with, notice of the mortgage and he buys thp property, whether he wills it or not, he holds such property subject to the rights of the mortgagee. His rights are those of the seller. He stands in the latter’s shoes. He owns the title and enjoys the right of possession in ordinary cases. He does not, however, become personally liable for the debt unless he assumes it. 9 Tex.Jur. 148 — 149, Chattel Mortgages, § 58, and authorities cited.

In this case the indispensable and controlling question is, Did the .appellee, either expressly or by necessary implication, assume the debt? There is no evidence in the record that he did so, unless the language on the above mentioned postal card can be construed as having that effect. The card simply expressed a desire to pay off the debt. This appellee had the right to do but was not obliged to do, unless he had so contracted.

Hence this record reveals no evidence which under the law would entitle appellant to recover. The trial court’s ruling and judgment was correct.

The judgment is affirmed.