Merchants National Bank v. Barker

28 S.W. 698, 8 Tex. Civ. App. 332, 1894 Tex. App. LEXIS 166

• Court: Court of Appeals of Texas
• Decided: December 5, 1894
• Docket: No. 1353.
• Status: Published

Opinions

STEPHENS, Associate Justice.

Plaintiff bank sued the sheriff of Wilbarger County for the value of a lot of barbed wire seized by him under attachment process in favor of the Tebo Mill and Elevator Company, as the property of Robinson Bros. & Co., alleging, in general terms, that at and before the date of the seizure said bank was the owner, in possession and entitled to the possession, of said wire.

Delivered October 24, 1894.

•The proof tended to show, that Eobinson Bros. & Co., being largely indebted to said bank, had conveyed their stock of goods to it for the purpose of securing and providing for the payment of said indebtedness; and in addition thereto, for the same purpose, had delivered said wire to its agent and representative by way of mortgage and pledge; and while so held, it was seized under said attachment process.

In this state of case, the following charge was erroneous and misleading: “But if you believe from the evidence that the transfer and de-

livery of the property, if any, by Eobinson Bros. & Co. to plaintiff’s agent or officer, Chase, was only made to enable plaintiff to dispose of said property and apply the proceeds thereof to the payment of the debt due by Eobinson Bros. & Co. to plaintiff; that the agreement and understanding by all the parties that the overplus, if any, arising from such sale should be returned to said Eobinson Bros. & Co., or to other creditors for their benefit, then the court instructs you that such a transfer and delivery would not constitute a sale to plaintiff; and if you so find, you will return a verdict for the defendants.”

It seems to be well settled, that a pledge of property to secure (he payment of a valid debt is, as against a wrongful attachment, sufficient title to warrant a recovery under a general allegation of ownership. Osborn v. Koenigheim, 57 Texas, 91; Schmick v. Bateman, 77 Texas, 326; Sanger Bros. v. Henderson, 1 Texas Civ. App., 412; Hudson v. Wilkinson, 61 Texas, 606.

If appellees, in order to reduce the amount of the recovery, relied upon the defense that the debt secured by this pledge amounted to less than the value of the property seized, they should have made proof of this fact. The evidence introduced, as far as it went, tended to show that the amount of the debt remaining unpaid exceeded the value of the property. Hudson v. Wilkinson, 61 Texas, 606. Also, if they relied upon fraud in the pledge, that defense should have been both alleged and proven. Willis v. Hudson, 63 Texas, 678.

Their contention that the order reinstating the case, after it had once been dismissed, was conditional and void, is untenable. Houston v. Starr, 12 Texas, 424, and subsequent cases.

For the error in the charge, the judgment will be reversed and the cause remanded for a new trial.

Reversed and remanded.