Elliott & Roe v. Long , 77 Tex. 467 ( 1890 )

HENRY, Associate Justice.

—Appellants brought this suit to recover 55 head of cattle and caused them to be seized under a writ of sequestration. It appears that Elliott & Roe purchased under a deed of trust executed by M. C. & L. E. Taylor, the owners of the cattle,- “40 head of beef cattle and 25 head of stock cattle running on the range in Nolan and adjoining counties and branded W.” Subsequently appellees purchased from F. M. Taylor “all of the W brand of cattle except 65 head secured to Elliott & Roe by deed of trust.” After the date of the last named transaction it appears that the vendors of Elliott & Roe confirmed their sale to them and authorized and required that the cattle sold to them should be branded thus A, and that the trust deed to them should cover the cattle that should be so branded. Upon the verdict of a jury judgment was rendered against plaintiffs for the sum of $330. There was a controversy about whether the herd of cattle to which the 65 head sold to plaintiffs belonged contained more than 65 head when the deed of trust was made through which they derived their claim. The evidence tended to show that it contained a greater number.

The court charged the jury that if at the date of the deed of trust “there was in the stock of cattle therein mentioned more than 40 head of beef cattle, and if the 40 head mentioned in the deed of trust were not segregated or identified in some manner from the other beef cattle, said deed of trust is void as to that class of cattle; and so if at the said date there was in the said stock of cattle more than 25 head of stock cattle and the 25 head therein conveyed were not separated or identified in some manner so as to distinguish them from the other stock cattle in the brand mentioned, then said deed of trust would be void as to said stock cattle, and if you so find the plaintiffs have no title to either of these classes of cattle.”

This charge was erroneous. It does not follow that because the deed of trust failed to convey any specific cattle that no rights were acquired under it. Conceding that the herd contained a greater number of each description of cattle than was conveyed, it does not follow that the contract was a nullity and conveyed no right to the vendees. As between the vendor and vendees it was proper for the contract to be subsequently executed by the selection and designation of 65 head of cattle.

The defendants, who were subsequent purchasers, not only did not purchase the 65 head, but they were expressly excepted from their purchase because they had been previously sold to Elliott & Roe. As the defendants never purchased these cattle, or any cattle except what remained of the herd after the 65 head sold to Elliott & Roe had been taken, it would seem that before any cattle sold to defendants can be treated as belonging to them, those sold to Elliott & Roe will have to be identified.

Plaintiffs did identify and mark by a distinguishing brand a number somewhat less than they were entitled to by the terms of their contract, and as their suit was for the very cattle so purchased by them and identified, they were entitled to a verdict and judgment.

The judgment must be reversed and the cause remanded.

Reversed and remanded.

Delivered May 27, 1890.