Wooters v. Hollingsworth , 1 Tex. L. R. 803 ( 1883 )

Willie, Chief Justice.

In this case it appears that Hollingsworth purchased a tract of land from McHenry and wife, and executed in payment therefor five promissory notes falling due at different dates, in each of which he promised to deliver to the payees twenty bales of cotton, or one hundred bales in all. McHenry being indebted to the appellants, transferred to them an interest in ■ the four promissory notes first falling due, and to the appellee Davis the note that matured last. The question for our decision is, Are the appellants entitled to have their notes first satisfied out of the proceeds of the sale of the incumbered land, by reason of the fact that their assignment was prior in time to that made to Davis?

This precise question was decided in the case of Salmon v. Downs, 55 Tex., 243, in which it was held that no such preference existed in behalf of the first assignor.

We are requested to reconsider that decision, because made by the commissioners of appeals, and to overrule it. • That case was referred -to the commissioners under the act of February 9, 1881, and their opinion when adopted by the supreme court became as authoritative as any of its own decisions. Whilst we decline'to disturb the decision made by the commissioners in that case, it is but proper to add that if the question were an open one, our conclusion would be the same as that arrived at by the commissioners. The weight of authority as shown by the decisions of our sister states sustains their view, although there are some cases which hold to the contrary. See Donley v. Hays, 17 Serg. & Rawle, 400; Henderson v. Herrod, 10 Sm. & Mar., 633; Mohler’s Appeal, 5 Barr, 418; Johnson v. Candage, 31 Me., 28; Philan v. Olney, 6 Cal., 478. And although the question had not been directly decided in our state before the case of Salmon v. Downs, yet the tendency of our own decisions has been in the same direction. See Delespine v. Campbell, 52 Tex., 12, and other authorities cited in Salmon v. Downs.

[Opinion delivered January 23, 1883.]

It ivas attempted in the court beloiv to show that a preference was given by the assignee to the holders of the four notes first transferred, in the instrument by which they were assigned. But the proof shows that the attempt was not successful. Had proof of such fact been made, the case Avould have presented a different question. It has been held in several instances that the assignor can by express Avords give the right of priority to his assignee, Avhich will be good against a subsequent purchaser of other notes secured by a contemporaneous lien on the same property, who has notice of such preference. The very fact that this case of express contract for priority is treated as an exception, goes far to establish the general rule to be, that no preference would exist when no such agreement Avas made. Be this as it may, the rule in our own state is now fully established in the case of Salmon v. DoAvns, and we are not disposed to disturb it, or' the rights Avhich may have grown up under it, and the judgment is affirmed.

Affirmed.