Sparks v. Pace

Citations

• 60 Tex. 298
• 1883 Tex. LEXIS 324

Syllabus

<p>1. Levy — Mortgage.—The execution of a mortgage on chattel property cannot affect the right of a creditor of the mortgagor to levy upon it and sell his interest under execution; the purchaser would buy subject to the mortgage lien, having notice thereof. If after purchase the rights of the lien holder are jeopardized, he may sequester the property in a suit against the mortgagor, and make the purchaser under execution a party.</p> <p>2. Trial Of right of property — Same.—The mortgagee, under such circumstances, cannot maintain the statutory action against the purchaser at execution sale to try the right of property, he not being in possession, nor entitled to possession. If, in mistaking his remedy, the mortgagee brings his action for trial of right of property, and sells under judgment the property mortgaged under a separate proceeding against the mortgagee, he cannot enjoin the judgment rendered against him in the suit to try the right of property by showing that fact. He must return the property or pay the judgment.</p>