Martin v. Covington , 1929 Tex. App. LEXIS 1046 ( 1929 )

. CONNER, C. J.

Appellee instituted this suit to recover the sum of $269.83, principal, interest, and attorney’s fees, due as the unpaid balance on two promissory notes executed by C. F. Cates, declaring upon a mortgage upon a described Chrysler automobile, which he sought to foreclose, that had been given by Cates to secure the payment of the last of the two notes referred to, upon which the balance due was $50. The mortgage, among other things, contained this special provision, to wit: “If default in payment be made * ⅜ ⅜ this obligation shall be at once due and payable, and said holder [of the note] may, without demand of performance, remove, take possession of, and sell said chattels at public or private sale, without notice, at any place where found.”

The plaintiff at the same time in due form sued out a writ of sequestration, alleging that the.car was in the possession of Cates. The writ was subsequently executed, as appears from the sheriff’s return, by taking the car from the possession of appellant, N. M. Martin. Martin intervened in the case, and pleaded a purchase of the automobile in question from Cates for a valuable consideration, alleging that plaintiff had wrongfully converted the car to his own use, for which he sought actual and exemplary damages in the sum of $999.

Plaintiff dismissed his suit as to C. F. Cates, and the trial proceeded against the appellant, Martin, alone, resulting in a judgment establishing the amount of indebtedness declared upon in said sum of $269.83, with a foreclosure of the mortgage upon the Chrysler automobile, and directing its sale and the application of the proceeds thereof to the discharge of the plaintiff’s indebtedness, to all of which Martin excepted, and prosecutes this appeal.

At the request of appellant, the trial court filed findings of fact and conclusions of law, which are before us; but there is no statement of facts in the record, and hence the court’s findings of fact are conclusive now.

In addition to the facts first stated in condensed form, the court found that the plaintiff’s mortgage had been duly filed and properly registered in the office of the county clerk of the proper court, of which appellant had constructive, but not actual, notice; that, before the filing of the suit, Martin had offered to pay the plaintiff the full balance of $65 due on the note executed contemporaneously with the mortgage; that the plaintiff 'had refused to receive the tender, because of the unpaid balance due on the first note; that at the time Martin purchased the Chrysler car he took actual possession of the same, and used it in his business as his own property until August 20, 1928, when it was sequestered by the plaintiff; that, after the car was sequestered by the sheriff, it was delivered to the plaintiff, who retained and still has possession of the same; that the car in question was of the reasonable market value of $400, and the reasonable value of its use from August 30, 1928, when sequestered, ‘ to the date of the trial, on November 24, 1928, was $7.50 a day. As a matter of law, tlie court concluded that the plaintiff, Covington, was entitled to a judgment as against Martin, foreclosing his said chattel mortgage on the automobile mentioned for the sum of $209.83,' and all costs of suit, and that Martin should recover nothing from Covington by virtue of his plea of intervention and cross-action.

We think the mortgage declared upon by appellee was valid, and that its terms are' sufficiently comprehensive to secure the balance due on the previous note executed by Cates to Covington, and that therefore appellant’s tender was insufficient. See 5 R. C. L., p. 420, § 50; Hoye v. Burford, 68 Ark. 256, 57 S. W. 795, by the Supreme Court of Arkansas, cited with approval in 1 Jones on Mortgages, p. 480, § 346.

The mortgage is dated May 14, 1927, and was filed for record May 21, 1927. Ap-pellee’s suit was filed on June 30, 1928, and the writ of sequestration sued out on the same day. Appellant alleges the conversion of the car as on August 30, 1928, that being the date as alleged when the car was taken out of his possession under the writ of sequestration.' The affidavit for the writ alleged that the car was in possession of Cates, and it was feared that Cates would injure it. There is no finding that these allegations were false at the time the affidavit was made, and, generally «peáking, without such proof, no recovery by defendant could be awarded under a mere allegation of a wrongful issuance of the writ. Under the statutes, appel-lee was given the legal right at the time of the institution of his suit, by making the proper affidavit and bond, to secure the issuance of the writ and have it executed, and in order for appellant to have recovered damages on that ground alone it was essential that he prove that the affidavit was false and the issuance of the writ unlawful.

Appellant’s principal insistence, however, is to the effect that by virtue of his purchase he had the legal title to the car- and an1 interest in the sequestered automobile, which he had the right to protect, citing in support of this contention the case of Sabine Motor Co. v. English Auto Co. (Tex. Com. App.) 291 S. W. 1088. This may. be conceded, but it is to be observed that the case cited is distinguishable in its facts from the one before us. In that case, -briefly stated, the Sabine Motor Company sold an automobile, and the English Auto Company acquired it from the purchaser. Later the Sabine Motor Company sued on the purchaser’s obligation to sell it and appropriate the proceeds, whereupon the English Motor Company sued as for a conversion of the car and obtained judgment therefor, which was upheld by the Commission of Appeals.

In the case before us, appellant, having legal title to the car by virtue of his purchase, had the right to its use, and upon its sequestration had the election to treat the levy as a conversion, or to assert his right under title 125, Rev. St. 1925 (articles 7402-7425), affording the remedy of trying the. right to the property, or, as he in fact did, intervene in the suit of appellee against Cates and set up his right. Having so elected to pitoceed and assert his claim and right, he is necessarily bound by the result, unless material error be shown in the proceedings. Lera v. Freiberg (Tex. Civ. App.) 22 S. W. 236; Moore v. Gammel, 13 Tex. 120.

As before observed, appellee, Covington, had the undoubted right to sue for the foreclosure of his mortgage, of which the court found that appellant had notice, and so far as the Tecord shows this is all the court rendered judgment for. As to appellant’s objection to the action of the court in permitting appellee to dismiss his suit as against Cates, it must be said that there is nothing in the record to show error in this respect. For aught the record discloses, Cates may at the time have been insolvent, or a nonresident, and the dismissal, hence, authorized under our statutes and procedure.. No other material questions have been presented.

We accordingly conclude that appellant’s assignments of error must be overruled and the judgment affirmed, upon the trial court’s findings of fact and conclusions of law, which we adopt, adding, however, that, while no complaint thereof has been made, we notice that the judgment fails to require that the excess, if any, in the proceeds derived from the sale of the automobile over the amount necessary to discharge appellee’s judgment, should be paid to appellant, and the judgment will be so reformed as to thus provide.