Ross v. Schultz , 1917 Tex. App. LEXIS 979 ( 1917 )

In view of the pleadings and facts found by the court, it is believed that the appellants' contention should be sustained, and that the S court erred in holding the defendants liable in conversion. The plaintiff Schultz pleaded in his petition that he had an existing chattel mortgage upon "the first four bales of cotton and cotton seed planted, grown, and gathered by B. Harlan and wife on the farm of C. F. Gilstrap, or any other land cultivated by them during the year 1915, each bale of said cotton to weigh not less than five hundred pounds lint and be of good average grade of cotton," and further pleaded the conversion of the first four bales of cotton and cotton seed grown and gathered by B. Harlan and wife on the farm of C. F. Gilstrap in the year 1915. And the court finds as a fact that the mortgage given by Harlan to the plaintiff Schultz covered Harlan's one-half interest in —

"the first four bales of cotton and cotton seed planted, grown, and raised by Harlan and wife on the farm of C. F. Gilstrap in Robertson county, Texas, during the year 1915."

Thus it appears that the mortgage of the plaintiff specified the property upon which the lien is to take effect, as pleaded and proved, as "the first four bales of cotton and cotton seed" that was to be grown and gathered on the farm of Gilstrap in the year 1915. The description of the property intended to be mortgaged is sufficiently definite and specific and segregates it from the other part of the crop. Robertson v. Mauldin, Montague Co., 11 Ala. 977; Stearns v. Gafford, 56 Ala. 544. And it is fundamental that a mortgage will convey all the property ascertainable from the description, and the specified property becomes subject to the lien of the mortgage; but other property not within the description contained in the mortgage will not pass under it. 6 Cyc. 1022. Having a mortgage lien expressly covering only the first four bales of cotton and cotton seed, as pleaded and proven, the plaintiff Schultz was not entitled to recover against the appellants; for, as found by the court, appellant Gilstrap, the landlord, furnished supplies to the tenant directly and through T. Ross Son, pursuant to an agreement made by and between Gilstrap and T. Ross Son, to the aggregate amount of $235.45. The legal effect of this finding of fact is to give the landlord, Gilstrap, a lien superior to the mortgage lien of the plaintiff to the full amount of supplies so furnished. And the first four bales of cotton gathered by the tenant were, as found by the court, of the value of $265.66, in only one-half of which the tenant had an interest. The cotton seed of the first four bales of cotton was of the value of $80, and in only one-half of this did the tenant have an interest. Thus the value of the tenant's one-half of the first four bales of cotton and cotton seed gathered in 1915 did not equal the amount of the debt owing to the landlord for the supplies furnished him. And if the proceeds of the sale of the remaining and second four bales of cotton and cotton seed exceeded the unpaid balance of the landlord's debt, the plaintiff Schultz had no right to recover, as of conversion, against appellants for such excess, for the plaintiff Schultz had no lien on the said remaining and second four bales of cotton and cotton seed.

There are no equities set out in the pleadings of the plaintiff entitling him to recover of appellants a judgment for the surplus money in the evidence arising from the sale of the last or second four bales of cotton and cotton seed in evidence.

The judgment, as against appellants, is reversed and here rendered in favor of the appellants. The costs of the trial court incurred by the appellants and the costs of this appeal are taxed against the appellee Schultz. The judgment of the trial court as to Harlan, not being appealed from, will remain undisturbed.