S. Lapowski & Bro. v. Taylor

Opinion. — 1. This is a statutory action for the trial of the right of possession of 87 head of horses. Valid attachments and executions in favor of appellants and against the firm of Seitz Bros. were levied on the horses, and appellee instituted this proceeding alleging that he was in actual and rightful possession of the horses as a mortgagee when they were seized by the sheriff. Appellants alleged that the mortgage under which appellee claimed was void for want of sufficient description, and also that it was a fraudulent device to defraud creditors.

There was a non-jury trial, resulting in a judgment for appellee. No conclusions of fact and law were filed by the trial judge. The evidence, however, warrants, and, in support of the judgment, we find, that when the sheriff seized the horses they were in the actual possession of appellee; that appellee held them under a mortgage executed by Seitz Bros.; and that the execution of the mortgage and the other writing disclosed by the record were not in fraud of the creditors of said Seitz Bros.

2. The description of the animals covered by the mortgage is as follows: "Also all of the horse stock of every kind whatsoever, branded and unbranded, that are now owned and held by us in Nolan and adjoining counties of the State of Texas, and to include all of the increase of and from said horses of whatsoever class that may hereafter arise from said horses." This is a sufficient description; it includes all horses belonging to the mortgagors in Nolan County and the counties adjoining Nolan, and therefore was not void for uncertainty of description. Articles 4562, 4563 and 4564 of the Revised Statutes, invoked by appellants, apply to sales, not to mortgages.

3. It was shown that the two subscribing witnesses to the power of attorney from John Seitz to Marshall Seitz resided in the State of Ohio. Therefore the court did not err in permitting the plaintiff to read said power of attorney as evidence after proving its execution by Marshall Seitz. Craddock v. Merrill,2 Tex. 495; 1 Greenl., Ev., sec. 572. Besides, it was shown that John Seitz afterward ratified what Marshall Seitz had done under the power of attorney.

4. The court below ruled correctly in excluding the judgment in favor of A.J. and F.M. Long against F.M. Taylor, and other evidence offered for the purpose of showing that F.M. Taylor had transferred property to appellee to defraud his creditors. The evidence had no relation to this case.

5. The judgment provides that "the several plaintiffs in execution and attachments levied on the said horses take nothing by such levies and said horses be and they are hereby discharged from any and all liens by reason of the levy of said attachment and executions thereon and said claimant retain possession of said horses until his mortgage lien is discharged and that plaintiffs take nothing," etc.

Appellants contend, and we think correctly, that the court committed error in adjudging their attachment and execution liens to be ineffectual and discharged. The attachment and execution levies were valid as against Seitz Bros., who owned the property subject to the mortgage under which appellee held it; and while, under article 2296 of the Revised Statutes, appellee was entitled to remain in possession until his claim was satisfied, still, appellants should not have been cut off from their right to have Seitz Bros.' equity of redemption sold under their attachment and execution liens.

6. The judgment will therefore be reformed so as to permit appellee to retain possession of the horses until the mortgage executed by Seitz Bros. to J.H. Beal, trustee, is discharged, but allowing appellants to proceed to sell the property subject to said mortgage as though the levies thereon had been made in the manner directed by article 2296 of the Revised Statutes (1879); and the costs of this appeal will be taxed against appellee. In all other respects the judgment will be affirmed.

Reformed and affirmed.