Laredo Nat. Bank v. Steinhardt , 15 S.W.2d 130 ( 1929 )

FLAT, O. J.

This is a suit on eight promissory notes for $100 each, alleged by defendant in error to have been executed to him by L. W. Beckham, against whom and plaintiff in error the action was filed by defendant in error, to recover the debt, interest, and attorney’s fees, and to foreclose a mortgage lien on a certain Jordan automobile Playboy roadster, giving model, serial number, and motor number. The jury in the case was instructed to render a verdict in favor of defendant in error for $905.39, with a foreclosure of the lien upon the automobile, which was accordingly done and judgment rendered thereon. This appeal has been, perfected by the bank alone.

The facts show that on December 23, 1926, L. W. Beckham bought from defendant in error, doing business as the Crockett Automobile Company, a certain automobile described as “one model J. Jordan Playboy Roadster,’’ and for a balance of $1,000 unpaid on the automobile a ■ chattel mortgage was executed and filed in the county clerk’s office of AVebb county, where Beckham resided. Beckham was a dealer in automobiles and had bought a number of automobiles from defendant in error for sale at times preceding this sale, but the automobile in question was bought for his personal use, and confirmatory of this it was recited in the mortgage: “This car is purchased for my own personal use and not for the business.” In further evidence that a sale was not to be made of the car it was provided the payments on the car were to be made monthly. The.car was not sold for resale, but, as indicated in the mortgage, was sold to Beckham for his private use and was not. exposed or' offered for sale, but was used by Beckham personally.

This writ of error was obtained on the proposition that the mortgage given by Beckham on the automobile herein described was null and void because he was a deafer and had exposed the automobile for sale. The proposition rests on the application of article 4000, Revised Statutes, to the facts of this case. That article provides: “Every mortgage, deed of trust or other form of lien attempted to be given by the owner of any stock of goods, wares or merchandise daily exposed to sale, in párcels, in the regular course of business of such merchandise, and contemplating a continuance of the possession of said goods and control of said business, by sale of said goods by said owner, shall be deemed fraudulent and void.” The testimony did not show that the automobile was any part of a stock of goods or merchandise daily exposed for salé, but, on the other hand, it affirmatively appeared that the automobile was specially ordered and used by Beckham for his private use. It was not exposed for sale. It was not contemplated by the statute that a dealer could not buy an automobile for his own use and give a mortgage on it. Mortgages, such as are made void by the-statute, were not void at common law, and the statute will be strictly construed so as not to include any property except that described in the statute. Krower v. Martin (Tex. Civ. App.) 184 S. W. 511. The automobile in question never became a part of “any stock of goods, wares or merchandise daily exposed for sale.” The car in controversy was not one used in the general trade, but had “a special carburetor, special valve connections, special timing gear shaft, special 'wheel, special tires and special pistons.”

The evidence was sufficient to show that the Playboy roadster was not at the time of sale nor ever thereafter placed in stock for sale, and if it be true, as a witness for plaintiff in error swore, that the car was on display when plaintiff in error obtained its mortgage on the car, and was afterwards put in stock for sale, it has effectually proved its mortgage was null and void. It would be rank injustice to hold the first mortgage null -and void because the automobile was exposed for sale, as provided in article 4000, and substitute for it a second mortgage on the same automobile. Plaintiff in error, like Samson, in pulling down defendant in error’s structure, pulled down its own and completely destroyed its lien.

AVhen defendant in error’s mortgage was executed the automobile was not a part of a stock of goods owned by Beckham, and the lien was vital and attached itself to the automobile, and the after acts of Beckham could not destroy a mortgage executed in good faith to defendant in error. It certainly would be superior to a mortgage given on the automobile while it was being exposed for sale. If any lien attached to the automobile when it was removed from the salesroom it must have been the first and not the second mortgage. It may be stated that the evidence is very unsatisfactory, if not totally insufficient, to show that the property on which plaintiff in error took its mortgage was the same upon which defendant in error took his mortgage.

The judgment will be affirmed.