Sanders v. Farrier , 271 S.W. 293 ( 1924 )

LEVY, J.

(after stating the facts as above). The important assignment of error is the one questioning the rendition of judgment against the appellant, the attaching creditor. In passing upon the assignment of error, regard must be had to the pleading and to the special facts in evidence, for the several propositions are based thereon. The defendant in the attachment writ, H. L. Shaw, was indebted to appellee and had executed a chattel mortgage on 150 head of cattle, besides other personal property, to secure the payment of the debt. At the time of and long before the levy of the writ of attachment, the chattel mortgage was duly registered in the county clerk’s office. The debt was due and unpaid at the time of the levy of the attachment writ upon 75 head of the mortgaged cattle. The chattel mortgage expressly provided that, in the event the mortgagor failed to páy the note at maturity, the appellee could take possession of the mortgaged property and sell the same, and with the proceeds of the sale pay the debt and interest thereon. Clearly, in the facts, the appellee was authorized to bring the statutory action for the trial of the right of property, for he was legally entitled to the possession of the cattle at the time of the levy of the writ of attachment, as well against the attaching creditor of Mr. Shaw as against Mr. Shaw himself. State Exchange Bank v. Smith (Tex. Civ. App.) 166 S. W. 666; State Exchange Bank v. Keys Mill & Grain Co. (Tex. Civ. App.) 170 S. W. 1051.

The proceeding in a trial of the right of personal property is merely a possessory action, and the issue joined and the fact to be tried is whether the attaching creditor or the claimant is entitled to the possession of the property at the time the “officer shall levy a writ of execution or attachment upon any personal property.” Article 7769, R. S. The lien of the attaching creditor is fixed at the time of the levy of the attachment, and he is entitled or not entitled to immediate possession through the officer at that time. If the claimant is entitled to possession at the date of the levy of attachment, and that be the only issue involved, then he, and not the attaching creditor, is entitled to a judgment in his favor at the date of the trial of the issues. Where the right to the possession of the property at the time the action is commenced is the only matter in controversy, that becomes the only question to be determined therein. 23 R. C. L. p. 934. Therefore the appellee was entitled to a judgment in the 'case, unless, in view of the further facts, the appellant’s plea in abatement of the further maintenance of the action should have been sustained by the court, and an order of dismissal entered.

The appellant affirmatively pleaded, in abatement of the action, that the appellee had been fully paid the debt and that he had released his lien on the attached cattle. In order that payment Of the mortgage debt shall constitute a defense to a possessory action, as here, it must appear that payment was made before or after the action began or the attachment was levied. But that fact does not so appear here. The effect of the evidence' is that during the pendency of the suit the appellee merely transferred to the bank both the note and lien for the balance due him, which was paid by the bank. And the trial court finds, and the evidence seems to support the finding, that the new note and mortgage taken by the bank from Mr. Shaw was intended merely as a renewal of the original mortgage of Mr. Farrier. The very purpose of the right of possession of the property under the chattel mortgage upon default of payment at maturity is that the property may be disposed of in satisfaction of the debt. The writ of , attachment would not impair the mortgagee’s right in this re.spect. Therefore a sale by the mortgagee of the mortgaged property in order to apply the proceeds of sale in payment of the debt would not legally affect or defeat his right to a judgment in his favor at the time of “the trial” of the issues between the parties, for the mortgagee would have legally established his right of possession thereto as a claimant of the property within the meaning of the statute. Articles 7787, 7790, R. S. And it is the general rule that a voluntary conveyance or transfer made during the pend-ency of a suit does not affect the suit nor impair the right to recover, if at the time the suit is commenced such party could have sustained the suit. Lee v. Salinas, 15 Tex. 495. It is not a legal cause for dismissal of the suit, since, in legal effect, the plaintiff would still be entitled to continue the suit, and to a recovery, inuring to the benefit of his vendee or transferee. Hearne v. Erhard, 33 Tex. 66; Bailey v. Laws, 3 Tex. Civ. App. 529, 23 S. W. 23; Evans v. Reeves, 6 Tex. Civ. App. 254, 26 S. W. 220.

We have carefully considered the clearly presented points of the appeal, and conclude that reversible error does not appear, and that the judgment should be affirmed, which is accordingly ordered.