Texas Auto Co. v. Clark , 12 S.W.2d 655 ( 1928 )

I fully concur in the disposition made of this case, and in all that is said in the opinion of Chief Justice GALLAGHER, except the holding to the effect that the tender made by appellee discharged the mortgage lien. The first discussion by our appellate courts of the question here involved was in Poff v. Miller, 235 S.W. 570, in which the Commission of Appeals said: "We are not prepared to say that the tender of payment in the instant case actually discharged the lien in the mortgage. We do not pass upon that point, as it is not necessary to a decision of this case. * * * But we are willing to say, with the Supreme Court of Vermont, that the tender in the instant case did, at least, suspend Miller's right to seize the property in question," etc.

In the case of Florence v. Warren et al., 293 S.W. 226, the Court of Civil Appeals at Texarkana said: "If the offer made by Warren to pay the debt was sufficient to constitute a legal tender, it operated to discharge the lien on the cotton. Poff v. Miller (Tex.Com.App.) 235 S.W. 570."

No other authority is cited. Evidently the honorable Court of Civil Appeals at Texarkana misconstrued the holding in Poff v. Miller. In one other case, Meyer Kiser v. French, 288 S.W. 405, the Commission of Appeals said: "We think the tender of payment shown by this record had the effect to discharge the mortgage lien (11 C.J. p. 679, secs. 452 and 453)."

It is thought the last case cited is the only one that should be regarded as any authority, for the Poff v. Miller Case, supra, did not so hold, and the Florence v. Warren Case, supra, was based upon a misconstruction of the Poff Case. Our Supreme Court has never so held, and the decision of this question of law in Meyer Kiser Case, supra, is not binding upon our Supreme Court, as the opinion in said cause was not approved by our Supreme Court but only the judgment recommended was adopted. McKenzie v. Withers, 109 Tex. 255, 206 S.W. 503; Stephens County et al. v. Mid-Kansas Oil Gas Co., 113 Tex. 160,254 S.W. 290, 29 A.L.R. 566. There are decisions in text-books, Cyc., Corpus Juris, etc., so holding, but these decisions, it is thought, were not under chattel mortgages such as we have in this state. Our chattel mortgage law is a creature of our statutes. Articles 5489 to 5499, inclusive. There being no provision in our statutes providing a tender shall discharge a chattel mortgage lien, it is thought our appellate courts have no authority by court decisions to make such law. Again, it is thought such rule of law would be unwise. A large per cent. of litigation arises between creditor and debtor over the amount due, and, where there is an honest difference on the part of both as to the amount due, the creditor should not be put to the election of accepting whatever the debtor may see fit to tender, or take the risk of losing his security, which in many instances would mean the loss of the entire debt. I do not think this is or ought to be the law. If the debtor tenders the correct amount, the creditor, if he sues, is deprived of the right of seizure of the mortgaged property under attachment, sequestration, etc., and is also taxed with all costs. It is thought this is sufficient protection to the debtor and sufficient punishment for the creditor. The decision of the question here involved was not necessary to the affirmance of the judgment of the trial court.