Avery v. Popper
This was an action originally instituted in the district court of Hunt county, Texas, by Ignatz Popper and Edward Popper (doing business under name of I. Popper & Brother), to recover upon a certain promissory note executed May 26, 1891, by John H. Cooke and Mary E. Cooke, his wife, to Thomas H. King, for $1,940, and for the foreclosure of a chattel mortgage upon certain personal property hereinafter described, and (in their amended petition) also for a personal judgment against John M. Avery and his sureties upon certain replevin bonds.

An interest in the note to the amount of $775 was transferred by King, the payee, on April 10, 1892, to the firm of I. Popper & Brother, and the residue of such note and interest to Robert R. Neyland, under the name and style of R. R. Neyland & Company.

To secure the payment of such note John H. Cooke and wife, on May 26, 1891, executed and delivered to King a chattel mortgage upon fifty cows, with their calves of that spring, which cows were branded 'Cook' on the left side and 'O K' on the left hip, the calves not being branded; also one bay-mare colt, one gray-horse colt and one black-mule colt. This instrument was legally filed and registered as a chattel mortgage on May 30, 1891.

On June 14, 1893, the marshal of the United States levied upon, among others, the above-mentioned property, by virtue of an execution issued out of the circuit court of the United States at Dallas on June 8, 1893, upon a judgment rendered in favor of W. W. Avery against John H. Cooke and certain sureties upon a supersedeas bond, but not against his wife, Mary E. Cook. This judgment was rendered in pursuance of the mandate of this court in Cooke v. Avery, 147 U.S. 375, 37 L. ed. 209, 13 Sup. Ct. Rep. 340. At the marshal's sale, which took place on June 28, 1893, the property was bid in by John M. Avery as attorney for and in the name of W. W. Avery, and all of such property was then and there delivered to John M. Avery.

On the following day, June 29, 1893, I. Popper & Brother brought this action in the district court of Hunt county against John H. and Mary E. Cooke, W. W. Avery, and John M. Avery, to recover of the Cookes the amount of plaintiffs's interest in the note ($775), and to foreclose against all the defendants their mortgage upon the property described. On the same day R. R. Neyland & Company brought a separate suit against the same parties to recover the balance due on such note after deducting the amount due Popper & Brother, and likewise to foreclose the mortgage. These suits were consolidated January 16, 1894. The property was seized while in the possession of John M. Avery by virtue of writs of sequestration issued in these actions. After such seizure, John M. Avery replevied and resumed possession of the property, drove it out of Hunt county, and within a short time thereafter sold and disposed of it.

At the time the mortgage was executed to secure the note, there were many more animals of the same description mingled with those upon which the mortgage was given; but the state court found the evidence sufficient to show that, just prior to the execution of the mortgage, the animals embraced in it were pointed out to Mr. Neyland, who represented King in taking the mortgage security and drafting the mortgage. But the animals covered by the mortgage were not separated from the others of the same description with which they were mingled, nor was there any such separation when the execution in favor of Neyland was levied upon the property in controversy. The court further found that the fifty head of cows described in the mortgage, as well as all others of like description mingled with them. were the separate property of Mary E. Cooke at the time the mortgage was executed, and continued to be her separate property until disposed of by Avery; that the fifty calves were born during the marriage of Cooke and wife, after the cows became the separate property of Mrs. Cooke, and were therefore, at the time the mortgage was given and the execution in favor of Avery levied, the community property of John H. and Mary E. Cooke. Also, that the horses and mule involved in this suit were the offspring of the separate property of Mary E. Cooke during her marriage with John H. Cooke, and were likewise the community property of Cooke and his wife at the time the mortgage was given and the execution levied.

The case appears to have been first tried in 1894, and judgment rendered against the plaintiffs in error; but on appeal by them the mortgage was held to be invalid, the judgment reversed, and the case remanded by the court of civil appeals for a new trial. Avery v. Popper, 34 S. W. 325. The case was again tried in October, 1897, and resulted in a judgment in favor of Popper & Brother against John H. Cooke in the sum of $1,637 and in favor of Neyland, whose suit was consolidated with the other, in the sum of $1,974. The mortgage was foreclosed on the fifty cows, one mare, one horse and one mule, and a further judgment rendered against John M. Avery and the sureties upon his replevin bond in the sum of $850, the value of the property disposed of by him. The court further found that as to the fifty calves the mortgage was invalid, and a foreclosure of the mortgage to that extent was denied.

The case was again carried to the court of civil appeals by John M. Avery and his sureties, which affirmed the judgment against Cooke and wife, but increased the judgment against John M. Avery and his sureties in the sum of $534, the value of seventeen two-year old steers and thirty-two two-year old heifers. 45 S. W. 951. The court found the district court to have been in error in holding that the mortgage executed by the husband and wife was not a lien upon all the property embraced in it, whether separate or community. On appeal to the supreme court the judgments of the court of civil appeals and of the district court were reversed, and a judgment ordered in favor of Popper & Brother and Neyland against the plaintiff in error, John M. Avery, and his sureties in the sum of $850, interest and costs. 92 Tex. 337, 48 S. W. 572, 49 S. W. 219, 50 S. W. 122. The court found that 'no right attached under the mortgage to specific animals, nor did it give a lien upon an undivided interest in the herd. The power was given to sell certain cows and their calves, which could only be done by selecting them from the herd, and it being necessary to the execution of the express authority to sell, the law will imply the authority to take the fifty cows and calves from the larger number. Oxsheer. v. Watt, 91 Tex. 124, 41 S. W. 466. The chattel mortgage was valid between the parties to it. 'Upon default in payment King or the holders of the note had the right to select from John H. and M. E. Cooke's stock of cattle and sell fifty cows and calves corresponding to the description in the mortgage. If the right had been exercised while the calves of the spring of 1891 were following their mothers, the selection of the cow would have identified the calf. But having failed to exercise the right until in the course of nature the dam and the young would separate, it has become impossible to identify the calves, and all claim upon them has failed, before Avery converted the stock.'

Whereupon Avery and his sureties sued out a writ of error from this court.

[Mr. John M. Avery submitted the case for plaintiffs in error.

Mr. Benjamin F. Looney submitted the case for defendants in error.

Mr. Justice Brown delivered the opinion of the court: 

Notes
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