Cook & McElvey v. J. G. Halsell, 65 Tex. 1

Delany, J. Com. App. The third, fourth and fifth assignments of error will be considered together: They complain of the action of the court in admitting the mortgage in evidence. The objections made to it by appellants are thus stated in the brief of counsel: 1. Because filing with the clerk, as provided by law, has not been' proved. 2. Because a.valid and properly filed and registered chattel mortgage has not been pleaded. 3.

Because the clerk’s certificate does not show at what time said mortgage was received by him, and that it was filed by him in his office, to be there kept for the inspection of all parties interested. Upon the back of the instrument is the following indorsement by the clerk: “State of Texas, 1 Wise County, j ss‘ This instrument was filed for record on the 15th day of February, at the hour of 10 o’clock a. m., 1883, and duly registered in book ‘I’ of Chattel Mortgages, page 24. John W. Hogg, Clerk.”

Section 2 of the act concerning chattel mortgages (R. S. App., p. 16) is as follows: “Upon the receipt of any such instrument the clerk shall indorse on the back thereof the time of receiving it, and shall file the same in his office, to be kept there for the inspection of all persons interested * * It will be seen that, so far as the indorsement is concerned, the statute requires the clerk merely to note the “time of receiving” the instrument. And although the clerk uses the words “filed for record,” yet the indorsement sufficiently indicates the day on which the paper was received in the office.

It was made Ms duty to keep the paper in his office for the inspection of all persons interested, yet he was not required to state all this in his indorsement. The case of Brothers v. Mundell, to which we are referred by counsel, contains nothing inconsistent with these views. In that case the indorsement on a chattel mortgage showed that it had been “filed for record,” and that it had been recorded in a book kept for the registry of deeds. It was held that this did not show a compliance with the act of 1879 concerning chattel mortgages, and that the deed was properly rejected. (Brothers v.

Mundell, 60 Tex., 240.) In the present case the record book of chattel mortgages in which the entry was made was not produced, nor was there a certified copy of the registry produced ; and if the proper objection had been made below when parol evidence was offered to prove the registry, the written evidence might have been produced. The objection will not be considered when made for the first time on appeal. The sixth, seventh, eighth and Mnth assignments relate to the charge of the court and to the charges asked by the defendants and refused.

The following charge was asked by the defendants and refused: “You are instructed that if you believe from the evidence that at the time the mortgage read in evidence was executed it was the intention and purpose of J. G-. Halsell, plaintiff, and Harry May, that the said Harry May should keep and retain possession of the goods mentioned in said mortgage, and continue in possession thereof, and control said business by selling the same, or any part thereof, in the regular course of business as a saloon-keeper, then you will find for the defendants, Cook & McElvey.” There was no error in refusing this charge.

The mortgagee might very properly leave in the possession of the mortgagor the property other than the liquors. The following charge was given by the court on the same subject: “6th.

If you believe from the evidence in this case that it was the intention of said Halsell to permit the said May to continue in the possession of the liquors mentioned in the mortgage, and to sell the same in the ordinary course of trade, then as to such articles the said mortgage would be void, and you could not find for Halsell against Cook <& McElvey for the value of the same.” The circumstances of the case were these: The note was executed on the 15th day of February. It matured on the 1st day of September. The amount was $850.

The whole property mortgaged was not much in value beyond the amount of the note, and quite a large part of the property consisted of liquors. All the liquors owned by the mortgagor were included in the mortgage ; all were left in the saloon, and the only change which was wrought by the mortgage was that the letter “H” was placed upon the heads of the barrels which contained the liquors.

The mortgagor did not himself draw any liquor out of the barrels; he told iiis clerks not to do so; whether they did so or not, he does not know, but he does know that he did not buy any liquor after the date of the mortgage, and that the sales of drinks at the saloon after that date amounted to from thirty to fifty dollars per day. Under these circumstances the court might well have made the charge much stronger; but even as it stands the verdict is clearly contrary to the evidence, and should have been set aside. (Peiser v. Peticolas, 50 Tex., 638; Scott v.

Alford, 53 Tex., 82.) Lastly, objection is made to the verdict and judgment. There are, in fact, two judgments, each for the sum of $969, and no precautions are taken against the collection of both. The verdict should have found the value of the various items of property replevied by appellants, as they had the right, by the statute, to return the whole property in satisfaction of the judgment, or a part of it in satisfaction pro tanto. (R. S., art. 4502; Hoeser v. Kraeka, 29 Tex., 450; Blakely v. Duncan, 4 Tex., 185; Bennet v. Butter worth, 8 Howard, U.

S., 128.) The judgment should be reversed and the cause remanded. Reversed and remanded. [Opinion adopted May 22, 1885.]