Williams v. Beasley , 5 Tex. Civ. App. 408 ( 1893 )

Appellant, plaintiff below, brought this suit against appellee, defendant below, in Justice Court, alleging, that one Delk was indebted to him on a note which was due and unpaid; that Delk had executed a mortgage on certain personal property to secure the payment of such note; that defendant, Beasley, knew of said lien, and had taken possession of said property and converted it to his own use; that Delk was insolvent and a nonresident; and he asked for a judgment against Beasley for the value of said property.

Defendant, Beasley, answered by general and special exceptions, and urged the following special exceptions: (1) Plaintiff's account fails to show defendant is in possession of said property, or any portion thereof. (2) Because Delk was not made a party to the suit.

In the Justice Court judgment was rendered for plaintiff, and the cause appealed to the County Court, where, upon the trial, the general and special demurrers were sustained, and judgment rendered for Beasley, from which Williams appeals to this court. The assignments of error relate to the ruling of the trial court on demurrers.

We are of the opinion that said ruling was erroneous. It is well settled, that when a nonresident debtor has property in this State, a resident creditor can proceed directly against the property to collect his debt. It is also settled, that where a third party converts to his own use property on which there is a lien, the creditor can proceed against him for the value of the property, not to exceed a sufficient amount to pay such debt. Boydston v. Morris, 71 Tex. 698.

The plaintiff alleged that Delk was insolvent; that he was a nonresident; and also that defendant Beasley had converted the mortgaged property. We think these allegations show a good cause of action. The exceptions should have been overruled. Veck v. Holt, 71 Tex. 715.

The judgment is reversed and the cause remanded for trial.

Reversed and remanded.