Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 429
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1884.] STILES V. HILL, FONTAINE & CO. 429
Statement of the case.
S. R. STILES ET AL. V. HILL, FONTAINE & CO.
(Case No. 1766.)
1. ASSIGNMENT - CHATTEL MORTGAGE.- An instrument, giving to grantees the
power to take possession of, control, and sell the merchandise of the makers
to secure a debt, carries with it all the incidents of a mortgage and does not
operate as a deed of assignment. La Belle Wagon Works v. Tidball, Van
Zandt & Co., 59 Tex., 292.
2. SAME.- Though such instrument provided that the residue of property
mortgaged, after a sufficiency had been sold to pay the makers' debt, should
be returned to them, the provision does not impair its validity as a mortgage.8. WRONGFUL ATTACHMENT.- Property rightfully in the possession of the mortgagee,
exceeding in value the debt it secures, can be attached as against the
mortgagor, but, unless the mortgage debt be first paid, the sheriff himself
cannot take possession of it, but the levy must be made in accordance with
Revised Statutes, sees. 167, 2292, 2296.
4. SAME--PARTIES.-- When so taken, the mortgagees may proceed directly
against the sheriff and his sureties; but it rests upon the sheriff to take
such steps as would bring parties on his indemnity bond promptly before the
court.
APPEAL from Red River. Tried below before the Hon. R. R.
Gaines.
Rogers & Atkinson, merchants at Walker Station in Red River
county, became indebted to Hill, Fontaine & Co., the appellees, in
the sum of $840. To secure this debt, P. H. Rogers, for the firm
(Atkinson acquiescing), executed to appellees an instrument conveying
to the latter their entire stock of goods and giving them immediate
possession, with the power to sell the same, until a sufficient
amount had been realized from the goods to pay off this indebtedness,
when the residue of the property was to be turned over to
Rogers & Atkinson. In accordance with this instrument, S. J.
Johnson, as appellees' agent, took possession for them, and appointed
Rogers and J. A. Mosely to sell the goods. Immediately afterwards,
S. R. Stiles, sheriff of Red River county, levied upon and
seized the goods by virtue of an attachment issued out of the district
court of Red River county against Rogers & Atkinson, and
sold the same under an order of sale from the judge of that court.
The value of the goods seized was $2,000. Appellees brought this
suit against Stiles, the sheriff, and the sureties on his official bond,
for damages for wrongful attachment of goods, and recovered a
judgment for the amount of their debt, with costs.
Taylor & Chambers, for appellants.
Dudley & McDonald and Sims & McDonald, for appellees.
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28512/m1/451/: accessed April 24, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .