Adoue & Lobit v. E. S. Jemison & Co.

Citations

• 65 Tex. 680
• 1886 Tex. LEXIS 728

Syllabus

<p>1. Judicial cognizance—Practice—This suit was brought to foreclose a lien on certain property. The property was seized under attachments sued out in other causes, plaintiffs in this action not being parties. The court took notice of the pendency of this suit and ordered the attached property to be sold, and the proceeds paid into court to await the result of this action. Held: That the action of the court was an irregularity which could not be raised on this appeal.</p> <p>2. Error—Cured by verdict—An error of the court in leaving the construction of a written contract to the jury can be cured by its verdict. (See opinion.)</p> <p>3. Lien holders—Attachment—The interest conferred by a lien upon property is not subject to attachment. The creditors of a mortgagee can acquire by attachment no title to the property mortgaged.</p> <p>4. Mortgagee—Attaching creditors—Registration—Failure to record a mortgage could not avail attaching creditors of the mortgagee who should seek to subject his interest in the mortgaged property to the satisfaction of their claim.</p> <p>5. Facts constituting mortgage—An agreement between A. and his creditors, B. and C., stipulated that B. should advance money sufficient to enable A. to cultivate his plantations for a year: that B. should have the privilege of disposing of the crop; and that the proceeds should be applied to the payment of A.’s debts to B. and C.—the method of distribution being specified. Held, that the agreement was a mortgage.</p> <p>6. Holder of liens—Attaching creditors—A. held different liens, all of which had affected certain property before attachment liens of B. and C. attached thereto. Held, that B. and C. could not complain at the enforcement by A. of either or all of his liens for the satisfaction of his claim.</p>