Garrity & Huey v. Thompson & Ohmstede

Citations

• 64 Tex. 597

Syllabus

<p>1. Execution — Claimant — Deed of trust.— A debtor executed to Ms creditor a deed of trust on a stock of goods, which was duly recorded. The deed of trust authorized the trustee to sell the property at public sale, in default of payment of the debt at maturity, and provided that the debtor should remain in possession and sell from the stock in the regular course of his retail business; but in doing so he was to act as the agent of his creditor, and was to account to him for the proceeds until the debt was paid. An execution was afterwards levied on the goods. Held:</p> <p>(1) That it is settled law that a mortgagee, out of possession cannot assert claim to property levied on by attachment or execution in the manner prescribed by statute. Following Wright v. Henderson, 13 Tex., 43.</p> <p>(3) That if a defendant has no interest in the property subject to execution, it may be levied on and sold, notwithstanding a third party may hold a lien with which it may be incumbered in the hands of a purchaser at the sheriff’s sale.</p> <p>(3) That a claimant, by his affidavit and bond, asserts an absolute title to the property, and is estopped from attempting to hold it under a mere lien.</p> <p>(4) That in this case the creditor proved no more than a lien by virtue of a deed of trust which showed on its face that he had neither title nor possession. The creditor could not have taken possession of the goods under any circumstances; even on a failure to pay the debt secured, he had no right to the possession.</p> <p>(5) That it was unnecessary to pass upon the validity of the deed of trust, or to determine whether a lien was created by it upon the particular property claimed, for, admitting the lien, it sustained no claim to the property.</p>