Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 57
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1875.] COOK v. STEEL. 57
Opinion of the court.
and proved a good demand against Carmichael before they
could recover against defendant Cook, and that the mortgage
is ilot sufficient for that purpose, because the account
on which plaintiffs sue was not a valid, subsisting demand
at the time the mortgage was given to secure its payment.
It is not denied that the note for $37.50 was such a demand,
and the objection is made only to the account as not subsisting
at the date of the mortgage, and because the cotton
crop, tlhe subject of the mortgage, was not then in existence.
In support of these objections, it is insisted that the
act of 1866, to give a lien on the crop for advances, &c.,
(Pas. Dig., art. 7110,) was intended to provide for a debt
created at the datb of the mortgage, and that this act contained
other provisions not found in the mortgage. The
mortgage does not contain all the requisites required by
the act. It is not declared in the terms of the statute
that the advancements were obtained by defendant Carmichael,
in good faith, for the purpose of making a crop, and
that without such advances he would not be able to do so.
It appears from the account, filed as part of the petition,
that it was in part contracted before the giving of the mortgage,
and that a portion of the articles were purchased and
furnished before, and others after that time. The mortgage
is dated April 19, 1873, and was filed for record on the 2d
of June thereafter. Conceding that the mortgage does not
contain all the provisions of the statute, it is believed to be
a valid common-law mortgage, and, as such, appellant has
failed to show any equity against it. The mortgage was
acknowledged for record, and the officer certifies with unusual
solemnity that Carmichael, the maker, was duly
sworn for that purpose, and the clerk certifies that it was
recorded in his office on the 28th of June, 1873. It is not
shown by the motion when appellant purchased the cotton,
and so far as his silence may be aided by the allegations of
the plaintiffs' petition, it can only be known that the sale
Was on the 26th day of December, 1873, under an execu
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/65/: accessed July 23, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .