Templeman v. Gresham

61 Tex. 50, 1884 Tex. LEXIS 44

• Court: Texas Supreme Court
• Decided: February 5, 1884
• Docket: Case No. 1770
• Status: Published

Opinion

Stayton, Associate Justice.

This action was brought to foreclose the landlord’s lien on the property seized under the distress warrant as well as that which had passed into the hands of the defendant Templeman, which, however, could not be seized, because he had concealed or disposed of it.

The landlord’s lien extended to all the property and did not de- • pend upon its seizure under the distress warrant. The lien was given by the statute, and the seizure by distress warrant only serves to secure the property that the lien on it may be made effective. Rosenberg v. Shaper, 51 Tex., 135; Boucier v. Edmondson, 58 Tex., 675.

The general rule is, that all persons who claim an interest in property on which- a lien is sought to be foreclosed should be made parties. Hall v. Hall, 11 Tex., 547; 2 Story’s Equity, 1526; Trittipo v. Edwards, 35 Ind., 467; Jones on Chattel Mortgages, 783.

The district court had jurisdiction of the subject matter of the suit, and, so having, had power to adjust the rights of the several parties claiming an interest in the property on which the lien existed, although the interest claimed in the property sought to be subjected to the lien may not as to some of the parties have been such as of itself to give the court jurisdiction. Peiser v. Peticolas, 50 Tex., 638; Peticolas v. Carpenter, 53 Tex., 27.

In the last named case, judgments were rendered in favor of intervening creditors of the defendant, whose claims were not sufficient in amount to give the district court jurisdiction, which, however, was held to exist by virtue of liens which they had on the property in controversy between the plaintiff and defendant.

The subject matter of the suit was sold pending the suit, and the proceeds paid to the plaintiff in the cause, and yet it was held that the interveners might.follow the proceeds into his hands and have judgments against him for the amount of their respective claims, although they each were in amount less than was necessary to give the court jurisdiction. ' This was because the court had jurisdiction of the subject matter of the suit, and power to adjust the rights of all who asserted an interest in it or its proceeds.

It would, perhaps, have been proper for the court to have foreclosed the lien on the cotton which went into the hands of Temple-man, and to have made his liability to pay its value depend on his failure to deliver it to the officer for sale within a reasonable time; but no objection is taken to the judgment on this account.

Believing that the district court had the power to render the judgment which was rendered, its judgment is affirmed.

Affirmed.

[Opinion delivered February 5, 1884.]