TEXAS CREDITOR'S RIGHTS AMD THE
Erwin D . Davenport
FARMER-RANCHER
TEXAS CREDITOR'S RIGHTS AKb THE FARMER-R A lvCrfEH
I.
Introduction
III Texas, an extensive body of statutory and. case law
focuses upon the rights of a creditor in satisfying a debt.
Although much of this law applies to all persons, regardless
of their occupations, a great deal of it has broad impact
upon the agricultural community.
The purpose of this paper
is to outline creditors remedies generally; while trving to
emphasize their application to the farmer-rancher In particular.
The paper will begin with a discussion of the Judgment
lien, execution lien, levy, and sheriff's sale.
This will
be followed by a short section concerning the provisional
remedies of attachment and garnishment.
Remedies in ai- »,r
execution (creditor's bills) will then be discurrec, follewed
i
by a short survey of the Texas law concerning assignments for
the benefit of creditor^.
The major portion of the paper will
then be spent In a discussion of Texas statutory liens; an
area which seems to have a particularly significant impact upon
the farmer-rancher.
This discussion willbe followed by a
brief section dealing with mortgagee rights and a discussion
of statutes of limitations.
Finally, the paper will discuss
the Texas exemptions from forced sale of both real and personal property.
-23ecause of the broad scope of the paper, I h^ve necessarily been forced to deal with most of the topics in a very
general manner.
I would hope, however, th-st the paper will
be of benefit in paining some knowledge of Texas crecltor's
rights, and its application to the farrcer-rancher.
II.
Judgment Lien, Execution Lien, Levy, and Sheriff's &ale
When a creditor obtains a Judgment in his favor, some
method must be utilized whereby the creditor Is able to convert the Judgment into money in his pocket.
If the Judgment
debtor has property, the Judgment creditor may be able to
satisfy his Judgment by means of a sale of that property.
Also,
if the Judgment debtor has no property subject to execution,
the Judgment creditor may want to perfect a lien on property
coming into the hands of thie debtor.
may at least be partially
Both of these objectives
achieved by the use of execii-icr
on the debtor*s property; and by obtaining a judgment l'_er.
on the debtor's real property.
A.
Judgment Lien.
A Judgment lien is a lien on all Of tKe Judgment cebtor's
non-exempt* real property presently owned or after-acquirec
in the territory in -which the Judgment lien has been perfected.
In Texas, as in most Jurisdictions, to obtain a Judgment
lien, the creditor must first have obtained a Judgment on the
2
debt.
The Judgment lien, however, does not automatically arise
upon rendition of the Judgment.
3
Its creation depend? uron
compliance xsith the statute, and the burden to show statutorily
compliance is upon the party asserting, the lien.
Further, the
judgment must be a final one before a Judgment lien can be
perfected.^
In order to create a Judgment lien in Texas, an abstract
of Judgment must be filed in the county clerk's office in the
county in which the debtor's real property is located.^
The
clerk of the court in which the Jucgment is rendered, upon
application of the prevailing party, makes out an abstract of
7
Judgment.
The abstract shows the names of the plaintiff and
defendant, the number of the suit, the date the Judgment was
rendered, the amount of the Judgment, ana the balance owing,
3
and the rate of interest specified in the Judgment.
There
is no requirement that the abstract describe ar.y propart\ .:*
the debtor, because the lien which arises upon recordation
is upon all real property of the aebtor in the county where
o
recorded. 7 •
Uppn the making of the abstract by the d o r k , the Judgment creditor files the abstract in the county clerk*s office.
At the time of recordation, a lien arises on all of the aebtor
real property in that county.**
filed in other counties.
Additional abstracts may be
These additional abstracts will
12
give rise to a Judgment lien in the county where fileu.
Article 5449 states thfct H . . . said lien shall continue for 10 years from the date of such Judgment and index
except that If during said 10 year period said Judgment becomes dormant said lien shall thereupon cease to exist, . . .
In Texas, a judgment becomes dormant unless execution is issued
on the judgment within 10 years after its rendition.
When
execution is issued the Judgment will continue for ten years
following the execution.1-*
T h u s / i n order to prevent the
•lapse of the Judgment lien, a new abstract of judgment should
16
be filed within the period of the first Judgment.
If the
Judgment is extended by execution, and the Judgment creditor
fails to file a new abstract of judgment within the period of
the original Judgment, his original Judgment lien will not con17
tinue.
1
An abstract"filed after the period of the original
Judgment, when that- Judgment has been extended by execution,
will create a new Judgment18lien, with priority from the time
of the subsequent filing.
'
As previously stated, the perfected Judgment lien creates
acounty
lien upon
judgment
property
7 the
19
where411
the the
abstract
of debtor*s
Judgment real
has been
filed.in
Thus,
20
no lien a&alnst the debtor's personal property if created.
The term real estate, for purposes of the Judgment lien, would
include any interest in land, owned in fee simple, for life, for
a term of y?ars, and would include an undivided interest in
land. 21
There is some authority for the proposition that the
Judgment lien will not attach to an equitable intereft in real
22
property.
However, one Texas case has held that the judgment
lien will reach the interest of a Judgment debtor in a contract of sale.*"J
Generally, the order of filing or recordation will determine the priority of the Judgment lien over other liens
2k •
and interests.
Also, the Judgment lien creditor is a cred-
itor within the meaning of the statute that provides for
priority of a creditor without notice over unrecorded conveyances and deeds of t r u s t . E x i s t i n g
Judgment liens will
attach simultaneously to after acquired property of the Jucgment debtor. 26
In other instances, the priority of conflicting
27
Judgment liens is determined from the time they attach.
3,
Execution. Levy, and Sheriff's Sale
Probably the most efficient way to approach a discutslon
of the Texas statutes on execution, levy, and sherir*f *s sales
is to discuss the statutes in chronological order,
.-.rte.r &
Judgment is rendered, the district, county, ar.c Just'.ce 75
courts
are authorized to enforce their Judgments by execution."" "he
execution is returnable in 30, 60, or 90 day?2 at
29
option.
pi.
iff
Rule 622 defines an execution as w , » , st -jycc s s
of the court from which it is i. s u e d . A l s o ,
the i-ise rule
states that "The execution anc subsequent execiitiona sha^l net
be addressed to n particular county, but shall be addressed
to
t1
any sheriff or constable within the state of Tex^s."
Thus,
after twenty days from the rendition of the Judgment,^ 2 the
prevailing party may have execution issued to any sheriff in
the state where he has reason to believe real or personal propof the debtor is located.
J
The general requisites of execution are provided in
rule 629.J
Rule 629 requires the execution to be dlrectec to
any sheriff or constable in Texas.
It is requlrec to be
signed by the clerk, and it H . . . shall require the officer
to exrcute it according to its terms, and to make the costs
which have been adjudged against the defendant in execution
and the further costs of executing the wrlt."-^
Following
rule 629, are rules 630-33 which apply to specialized types
of writs of execution.^
Rule 634 states that if a supersead-
eas bond is filed pending appeal of the trial court judgment,
the clerk shall issue a writ suspending all further proceed37
ings under any previously issued execution.
In Texas, no lien arises until there is an actual levy
36
pursuant to the writ of execution.
dealing with levy Is rule 6 3 7 . ^
The most important rule
This rule states that wher.
an officer receives a writ of execution he shall, without delay, proceed to levy the same upon the defendant's property
found within his county not exempt from execution, unless the
' •
4o
plaintiff, his agent or attorney, directs otherwise.
It is
the duty of the officer, to call upon the defendant, if he c«n
be found, in order for the defendant to point out property for
4l
the officer to levy upon.
If the property pointed out will
not be enough to satisfy the Judgment, the officcr will re42
quire an additional designation by the defendant.
It is the
duty of the defendant not to point out property which he has r
sold, mortgaged, or conveyed lr. trust, or property exempt from
foreed sale, ^
In cases when no property is pointed out, the
officer is author!aed to levy upon any property of the defend1 44
ant subject to execution.
-7Rule 639 provi'des the particular methoas of levy on real
i^C
;
and personal property.
In the case of real property, levy
U6
is sufficient if the officer indorses the levy on the writ.
This is known as an "office levy." '
In the case of personal
property, constructive levy is not, In most cases, sufficient.
The rule provides that ". . . levy upon personal property is
made by taking possession thereof, when the defendant lr. execukft
tion is entitled to possession."
The rule further provices
th'.-'t when the defendant's interest in the personal property
is non-possessory, a levy is mace by giving notice of the
lyQ levy
In writing to the person who is entitled to possession.
An exception to the prohibition of constructive levy on
personal property is the "range levy" of rule 640.
The rule
states 1
1
A levy upon livestock running at lfir?e in a
range, and which cannot be herded and penned v: shout great Inconvenience and expense, may ce made
by designating by reasonable estimate the number
of animals arid describing them by t.neir marks and
brands, or either $ such levy shall be made lr. the
presence of two or more credible persons, and notice
thereof shall be given in writing to the owner or
his herder or agent, if residing within the county
and known to the officer.51
It would seem that the most obvious drawback to the use of the
constructive levy of rule 640 would be the scarcity of livestock "running at large in a range" and "which cannot be
herd«d and penned without great inconvenience and expense."
The rule, if applied today, should not be restricted to cattle
on "open ranee'' for the onvious reason tnat or en range is for
-8all practical purposes a thing of the past.
The rule coulci be
applied without a great deal of strain to cattle In rather
large pastures, which are effectively the equivalent of open
range, when actual 'seizure would be costly and inconvenient.
In the case of Williams v. DeBaca.-^
the court refuted to
apply the rule to cattle in a pasture of k,000 acres.
The court
stateaj
When cattle sought to be attached are within an enclosed pasture, unless the pasture is so large as
to amount to an open range, it is necessary that
the officer executing the writ take said cattle
into his possession in order for the levy to be
•legal and fix an attachment lien.->-*
As developed by case law, another agricultural product
subject to levy is growing crops.
One court stated that,
"Crops, whether growing in the field or standing readv tc be
harvested, are, when produced by annual cultivation, not part
of the realty, and are liable to voluntary transfer as chisels,
end to seizure and sale under execution."^
Beaurline v. Sinclair Refining Co.
make a levy on growing cotton.
In "hfc caso cf
the sheriff
to
The sheriff cid nothing mors
than notify the defendant's wife that he was levying on she
cotton, thus no levy was made.
The court relied upon the
following statement of Justice Gaines in Coates v. Calcselli^
Upon a levy upon such property the officer must
either take possession of the land to gather the
crop, or must sell it ungathered. In the later
case the right would pass to the purchaser at
the sale to go upon the land ana take off the crop.
In order to complete a sale or make it effective,
possession must be taken of tne lana uron which
-9the crop is found, and for a time at least the
officer or purchaser must exercise dominion over
it.57
The Beaurllne court concluded by stating that neither the
sheriff nor his deputies made any effort to aovertlse or sell
the cotton in its ungathered condition."'®
They did not place
a guard over the field, according to the court, nor did they
place any signs there to indicate the cotton was in the custody of the sheriff.
7
Thus, there was not a legally suffic6r
lent levy upon the cotton in question.
FroT. a reading of
the cases, it is apparrent that the levying officer .T.ust exercise some sort of dominion over the crops before a levy will
be effective.
It would seem from the Suaprllne case that an
actual cutting or harvesting of the crop would be sufficient.
However, the less overt the acts become, the less compelling
the reason becomes for a court to hold that a levy has been
effected.
Other rules dealing with levy of particular tyres of
property are rules 64l and 641.~ J
Rule 64i provides that
"levy on shares of stock is effected by the officer taking
possession cf the stock certificate.^ 1
Rule 642 provides t*at
lfevy upon the interest of a partner in partnership property
is made by leaving a notice with one or more of the partners
62
or with a clerk of the partnership.
If goods of the debtor are pledged or mortgaged, rule
6(4> controls.
J
This rule provides that goods subject to a
pledge or mortgage may be levied upon and sold against the
-10person making the pledge or mortgage subject theretos and the
purchaser may have possession, when it Is held by the pledgee
or mortgagee, on complying with the conditions of the pledge
64
or mortgage.
Rules 644-46 provide a means by •which, after porting
bond, the debtor may replevy the levied property,^
when such
a bond is made, which would- seer', to be highly unusual,' the dei
fendant may sell the property, upon paying the officer its
stipulated value.
66
The sale of real property is governed by rules 646a67
46.Rule
646a provides that real property sh£tll be sold at
/o
public auction at the court house door
unless the court or-
ders the property to be sold at the place where the real
60
property is situated. 7 The time for the sale is or, the
first Tuesday of the month between the hours of 10.00 am
and 4.00 pm."''0
Rule 647 provides for the recnircc r.otice of
a s«ile of real prcoerty,^
Notice must be pvA"" * fh'd once a
week for three consecutive weeks preceding ofcci ss&ie; with the
72
first notice appearing not less than 20 uays 'm^fmvc the srale.
If the real property leviec. upon Is city 1 cts£, art.
3806 governs."^
This statute provides th*st unlest- the mature
.of the improvements on the lots
74prohibit it, each lot or
lots shall be sold separately.
If the real property levied
upon is rural, art. 3807 governs its sale.-'
In this situation,
the owner Is allowed to present to 76
the officers a plat of
the property as actually surveyed,
which civides the prop-
-11rrty Into lot,-, of riot lest than 5<J 'icres.
n a sufficient
number of these lots are cold to satisfy trie exec.ilcr., tic s'^lfe
shall cease.
7S
If the property levied upon Is personal property, rules
-and 650 govern Its sale."^
Personal property Is sold on
the premises where it is taken in execution, or at the courthouse uoor of. the county, or at some ether place if the nature
of the procerty makes it easier to exhibit it to prospective
purchasers there. 6 0
•
Personal property that can be exhibited
is not to be sold, unless it is present and can be viewed
81
by those attending the sale.
If'the sale is pursuant to a
82
range levy, no part of the stock need be present at the sale.
The purchaser of the cattle at the sale is authorized by the
rule to gather and pen the stock and select from those penned
the number purchased by him.
J
Ifi the sale of personal prop-
erty, rule 650 states that notice must be posted at the courted
house door, and at the place where the sale is to be made.
II.
Attachment
Attachment is a solely pre-judgment rerredy which allows the
sheriff to levy upon the debtor's property before trie validity
t
of the debt has been finally adjudicated.
The same property,
either real or personal, that can be reached by a writ of executlon can also be reached by a writ of attachcent.
J
The writ
of attachment
creates
a lien
time
cf levy,
86 contingent
upon
prosecution
of the
suit at
to the
flr.al
Judgment.
In Texas, several grounds will support issuance of the
-12v?rit of attachment.
Article 275 states that the clerk of tne
court may; issue writs of attachment.
before the writ will
be Issued, however, the plaintiff iust make an affidavit
stating that the defendant is Justly indebted to the plaintiff
88
and the amount of the demand.
In addition to this allegation
the plaintiff must allege at least one of eleven more specifically
80
enumerated grounds listed in the statute,
7
Further, the affi-
davit must state that the writ of attachment is not sued out
for the purpose of injuring or harrasslr.g the defendant and that
the defendant will probably lose his debt unless such attachoc
ment is issued.
Another requirement is that the suit shall
91
have begun before the *rit can be issued. 7
In any.case when a writ of attachment is issued, the
plaintiff must execute a bond, payable to the defendant,
with two or more sureties, in an amount to be fixed by the
v
"
92
Judge issuelng the attachment»
The bond is conditioned that
the riaintiff will prosecute his suit to effect, ar.ci will cay
all such damages and costs taxed against him for wrongfully
suelng out the attachment
When the plaintiff executes the affidavit ana bond, it is
rhe duty of the clerk or Judge, to immediately issue the writ
of attachment, directingo/j,the sheriff of any county where the
defendant has property,
to attach so much of the property
of the defendant necessary to satisfy plaintiff's demand,
and the prcbable costs s u i t . ^
As a safety precaution, the
sheriff may require the plaintiff to execute an indemnification
-13bond In his favor.
<56
3ecause the sheriff levies the property
at his own risk, •^"•r, this second bond is almost always required.
If the sheriff attaches personal property, this property
remains in the possession of the attaching officer until final
07
judgment,''-
The above rv-le applies unless a claim is made to
the property and a bond given "to try the right to the same"
or unless "the same be replevied of be sold as provided by
.,98
law,'
Article 300 provides that the execution of the writ
of attachment upon defendant's property creates a lien on the
real property levied and on the personal property in the hands
of the attaching officer, from the time of
l e v y . j f
the
plaintiff recovers in his suit, the attachment lien is foreclosed. 1 0 0
When goods such as perishible commodities1 are attached,
01
rule 600 provides for their expeditious sale."
This rule
provides that the a-trtached property may be ordered sold "whenit appears that such property is in danger of sario-is or i T e d iate waste or decay, or that the keeping of the same until the
trial will necessarily be attended with such expanse or deterioration in value as greatly
to lessen the amount likely to
102
be realized therefrom."
. In this situation, the notice of
sale is aiven in the manner directed by the order of sale,
and may be a shorter period than in other situations.10-^
-lUIII.
Garnishment
"Garnishment is a proceeding whereby the property, money,
or credits of one person in the possession of or owc-ing by, another, designated a garnishee, are applied to the payment of
the deot of the debtor by means of proper process issuea arainst
104
the garnishee."
In Texas, the clerks of courts may issue
writs of garnishment in three different situations.10-*
First,
a writ of garnishment may be issued where an original attachment
has been Issued.
Second, a writ of garnishment rnay be issued
where the plaintiff sues for a debt ana s\akes an affidavit
stating that the debt is Just and unpaid, that the defendant has
no property subject to execution sufficient to satisfy the debt,
and that the garnishment is not for the purpose of injuring
the defendant or the garnishee. 1 0 ^
Third, the writ may be issued
where the j plaintiff has a valid subsisting Judgment and makes
affidavit that the defendant has no property in his possession
within the state subject to execution sufficient to satisfy
the Judgment.10''
Article 4o84 1 ^?ovides that after the service of the writ
on the garnishee ". . ; it shall not be lawful for the garnishee
to pay to the defendant any debt or to deliver to him any
effects. . ..."
10
^
The defendant may, however, replevy the
goods in the possession of the garnishee, by posting
bond
i in
in double the amount of the plaintiff's debt.
Rule 66l provides for the form and content of the writ
of garnishment.
The writ commands the garnishee to answer
-15•'hether or not he Is Indebted, to the defendant, whether any
property of the defendant is in his possession, ana if he
knows of other persons indebted to or holding property of the
defendant. 1 1 1
After service of the writ, the garnishee must
112
answer these questions-under oath.
If the garnishee makes
an answer, and this answer Is uncontroverted, the garnishee
Is then discharged; however, if the garnishee fails to answer
after proper notice, a default Judgment is entered apainst
him.11"^
If it appears that the garnishee Is indebted to the
defendant, then Judgment is entered against him.
11
If it is
found that the garnishee has property of the defendant, in
ii <5
1
his possession, then the court will order the property sold." '
J
If the plaintiff thinks the garnishee's answer is wrong,
he is allowed to controvert the answer.
When the answer is
controverted, the court forms the issues to be tried ar.c it is
117
tried as in other civil cases.
During the course of the rro-
oeedings, if it appears that the garnishee has paid the indebtedness or delivered the effects to the 118
sheriff or constable,
then the garnishee will be discharged.
IV.
Creditor's Bills
At common law, courts of equity permitted creditor's bills
in three instances, (1) to discover assets, (2) to reach equitable and other interests not subject to levy and sale at law,
ana (3) to set aside fraudulent conveyances. 11 ^
of assets Is provided In Texas by rule 737.
The discovery
This rule provides
-I6-:
that "all trial courts shall entertain suits in the nature of
bills of discovrry, anc grant relief therein in accordance with
the usages of courts of eouity."
120
Also, the rules give the
judgment creditor full use of all the pre-trial discovery aevices to help in discovering assets of the Judgment debtor.
121
Texas also provides by statute for setting aside conveyances
122
that are fraudulent as to creditors of the assignor.
The
question then, IF whether the common law creditor's bill to
reach and apply is applicable in Texas.
One commentator has suggested that the common law credit6r's
bill to reach and apply should be applied to allow creditors
to reach the interest of a debtor farmer in a cotton allot123
ment.
The author first espouses the idea that the .. . Ict~ents
should be* although intangible, subject to levy under writ of
execution or attachment,
A levy on intangibles should be
sufficient
if it gives
to the
property is attached
under notice
the writ.
Af
No debtor
longer that-.the
should valuable
intangible assets elude creditors' lei'al remedies simply
125
because they cannot be taken into possession.". "
The
author further discussed the possibility of whether cotton
allotments could be reached oy the writ of parnishment.
He concluded this discussion by stating that ". . . it is •
doubtful that cotton allotments, which are intangilbe assets,
could be reached by garnishment, even if an official or agent
of the United States government127
could properly be made a
garnishee, which is unlikely."
The commentator celievec,
however, that the common law,creditor•s bill to reach ana apply
might be a way to use t^e. cotton allotment to satisfy a debt.
-17Flrrt of all, It was rolntet- out that, although It hie nevrr
been specifically held that the creditor's bill to reach and
apply did not exist in Texas, the dictum of early Texas cases
128
limited its application. •
This dictum was finally applied
as a positive rule of law in a court of civil appeals opinion.
The author of the comment stated that all of the early cases
expressing doubt about the creditor's bill "were decided v:hen
traditional sympathy for the debtor existed in a traditionally
rural economy."1"^0
Such a rule according to the author,
should not be applied in an expanding urcan economy wher^.
much wealth is held in the from of intangible assets. 1 - 51
It
was stated
To allow the debtor to retain assets like the
cotton allotment would give him a windfall at the
expense of creditors. Indeed, in view of our
modern exemption laws—-a reflection of the nineteenth century attitude of protecting, debtors in
every way possible—the creditor should have available a procedure-to reach an asset that is not expressly exempt; J
The comment then expressed the opinion that recently,
Texas courts have shown a more favorable attitude tov:aro giv•. i
Ing equitable aid to the c r e d i t o r . I n
adcitlon to thii
more liberal attitude, it was believed that rule 737 vas *
sufficiently broad to include, as an incident of its en134
forcement, the creditor's bill to reach and apply.
The
rule states that "all trial courts shall entertain suits in
the nature of bills of discovery, and grant relief therein
In accordance with the usage of equity."
The author felt
-18that because creditor*s bills to reach and apply were in accordance with the u s v e of equity, that rule 737 should be inter136
preted to include then.
J
The author concluded by stating,
that i
If It Is only the nature of the property that puts
valuable intangibles beyond the clumsy process of
the law, then there is no reason for equity not to
aid the creditor. 1 37
Cotton allotments, however, .have been held in the Fifth
Circuit, not to be property which if taken by the government,
OQ
would be within the due process clause..
The question then
is whether these allotments are property which a creditor could
reach.
Although transferrable, they are subject to restrictions
and regulations prescribed by the government.
However, if
they are considered to be an intangible property Interest of
the farmer, then the 3. deaan contained in the above mentioned
article may merit serious consideration,
IV,
Assignments for the Benefit of Creditors
In Texas, the law recognizes both a statutory and common
law assignment for the benefit of creditors.1*5^
3oth of these
methods are appropriate, so long as there is no provision for
r
discharge, which wouia '.conflict with the Jurisdiction of the
140
United Sta,tes in bankruptcy matters.
The legal effect of
such an assignment, if not superceded by bankruptcy, is to
put legal title In the assignee, precluding
l4l creditors from levying. on property of the assignor debtor.
The only way to
-19challenge such an aSsiflnment woulc be on grounds that It ccnsl42
tltuted a fraudulent conveyance.
Thus, once the assignment
has been made, it prevents the attachment of any involuntary
143
liens.
In Texas the statutory assignment requires time ar:a
liiiL
formalities which are not required by the common law assigr^ent.
Therefore, the statutory assignment Is not very important to
the practicing Texas attorney.
It should be kept in mind,
however, that in the simpler common law assignment, the assignee
will have to consider the priorities involved in the distribution of property to various creditors.
For example, valid
liens existing prior to the assignment are still validi after
this, most debts can be satisfied pro-rata, except for priority
claims under various statutes.
VI,
Statutory Liens
In Texas, many state statutes provide for liens upon
the property of a person that arise by operation of law.
Among these liens are the landlord's lien, warehouseman*s
lien, the lien of farm laborer, and various other statutory
liens.
These statutes, and so-ne of the liens they provide,
will be discussed in this section of the paper.
A.
Landlord's lien
Article 5222 provides for the landlord's lien on the
146
crops of the tenant.
The first part of the statute provides
that the. landlord will have a preference lien on the. property of
-20the tenant
191
fot rents that become aue and for money, goods,
supplies, and anltrals furnished or caused to be furnished to
147
the tenant in order to make a crop.
'
This lien extends to the
crop itself and to the money, goods, supplies, and animals
furnished or caused to be148
furnished try the landlord to the tenant
in order to make a crop.
The statute provid-s further th'-.t
v:hen the arrangement provides that the lessor furnishes everything except the labor and the tenant furnishes the fn. \or, the
landlord shall nave a lien on the crops for rent and for money,
provisions, and supplies furnished or caused to b<* furnished to
make the crop, the lien extending only to Sine crop'or crops
grown on the premises for the year inl4o
wnich toe same is
furnished or caused to be furnished.
7
Article 5222 further provides that the article do-?s not
apply where the tenant furbishes everything but the land and
where the landlord charges rental on -."'ore than one-toirc the
vdliue of the grain and more than one-fourth the value of the
cotton raised on the leased premises.1'*0
The .article also coes
not apply' in a case where the landlord furnishes everything
but the labor and the tenant furnishes the labor ar.d the landlord charges rent of more than one-half the value of1 ti
the gra&n
raised and one-half the value of the cotton raised.
J
The lien under article 5222 continues in the agricultural
products ano as to property furnished as long as
1 <52they remain
on the leased land and for a month thereafter. ^
If the ag-
ricultural product« '.re plicet' in purlic warehouses controlled
-21by state law, within 30 days of leaving the leasee premises,
the lien continues for as long as they reitain in the warehouse. ^ ^
It is further provided that the landlord's lien is superior to
all laws exempting the aprlcultural products, and property
furnished, from forced s n l e . 1 ^
Article 5224 provides that the landlord's lien does not
apply to the goods, wares, and merchandise of a merchant, trader,
or mechanic, sold and delivered in the ordinary course of business to the t e n e n t . 1 ^
It is provided by article 5225 that while the rer.t and advances owing the landlord remain unpnla, the tenant, v.ithcut
corsent of the landlord, shall not remove f?om the leased premises any agricultural product on the premises, or any of the
animals, tools, or property furnished by the lndlord. 1 ^'
The
removal of agricultural products with the consent of the lar.cl.ord
for the purpose of preparing them for market is not considered
a waiver of the landlord's lien.
If the products are re-
moved for the above purpose, the lien continues in these products as if they had remained on the leased premises.1^®
Article 5227, the distress warrant statute, provides that
when rents and advances become cue or the tPenant is about to remove himself or the encumbered property, the landlord may apply
to the Justice of the peace for a warrant to seize the pror.erty
159
of the tenant.
The question of priority between a landlord's lien ar.d
a chattel mortgage was a question upon which earlier Texas
cases seem to hnve been divided.
In American lyre Founders
-22Co. v. Nichols, 1 ^ 0 the Texas Supreme Court ir: dictum, seemed to
be stating, thst a chattel mortgage on property, prior to the
time of the landlord's lien, would take precedence over the
landlord's lien.
From a reading of other opinions, however,
it can be argued that the existnece of the landlord tenant
relationship would put 9 prospective crop flr.ancer on notice
of the rights of the landlord and his lien.
One court statedt
The statute is itself notice to all parties dealing with the occupant of the terms and conditions
of his tenancy ana the landlord is never bound bj
lnformatip n not obtained from him or not authorised
by him.
The same court further stated:
If a oonafide purchaser for value could acquire no
title superior to that of the landlord, it certainly will not be contended that a subsequent
innocent lienholder is in any better p'ligot.162
It would seem then.that a financer of crops would always be
put on notice of the rights of the debtor-tenant, if the
landlord tenant relationship existed at the time the agreement to finance was reached.
It has further been said thati
As between the mortgagee of a crop and the
landlord who has furnishec the tenant the therewithal to make the crop, the landlord has t-e
superior right, unless the lanclord has waived
or surrendered his lien as to the mortgagee. The
lien takes precedence although the mortgage may
have been executed and registered before the lien
attached. Though the tenant may effectively mortgage an
unplantec croc, the landlord acquires a lien
thereon when the crop has come into feeing that is
superior to th-At of the mortgagee.
Whether this is still the 1 '-.v remains quite questionable.
-23Beotion 9»104 states that Article 9 does not apply to a landlord's lien.
The question of priority between a landlord's lien
and a security interest, must be decided cy reference to law other
than the code.
A recent decision by the Eastland Court of Civil
164
Appeals nay have shed some light on this question.
In that case
there was a dispute between an unperfected secured creditor and
a landlord over who had priority in a refrigeration unit on the
leased premises.
After noting that 9.104 excluded tie landlord's
lien frcm the operation of Article 9, the cottrt "ci£decthG---fcjl©»iiig-statement t
Appellee contends, and we think rightfully so, that
since § 9.301 does not apply to a priority question
between a perfected landlord's lien and an unperfected security Interest we must look elsewhere
to find the answer. He cites Berley & Gay Furniture Co. v. Sherman Hotel Co., as authority for
his position that prior to the enactment of the
Code, actual knowledge by a landlord of a third
person's unperfected security interest in property
of a tenant located on a landlord's premises would
not prevent a landlord from perfecting his l&ndlord's
lien. The rule is stated in the Berley case as well
as other early Texas casee, that knowledge on the
p.^rt of the landlord will not defeat the landlorc's
priority claim. This rule came about because of the
language contair.ed in the appllcacle recordation
statutes. A landlord was held to be a creditor as
distinguished from a purcnaser, mortgagee or lien
holder. The early cases construed the language in
the applicable recordation statutes to mean that
an unrecorded mortgage or lien was void as to the
creditor even though the creditor hac knowledge of
the unrecorded encumbrance. However, knowledge on
the part of a subsequent purchaser, mortgagee or
lien holder would defeat their right of priority.
•• • •
We hold that an unperfected security interest is
not subordinate to a landlord's lien when the landlord has actual knowledge of such unperfected security interest before the lien is perfected.
Fro.T a reading of the case, it would also seem that a landlord's
lien would be subject to a perfected security interest which
was perfected before the landlord's lien attached.
In a crop
financing arrangement, however, this might be difficult to
achieve.
If the collateral is crops, there must be a des-
cription of the property upon which the crops are growing or
to be g r o w n . 1 6 6
If the landlord-tenant relationship haa al-
ready arisen, the landlord would already have a lien on any
l67
crops subsequently raised, to satisfy rent.
If the land-
lord-tenant relationship had not arisen, it might be difficult
to describe the property upon which the crors are to be grown.
If the security interest was unperfected at the time of the
lease but the landlord had actual notice, the reasoning in the
atoove case might apply to give the secured party a prior
rights
It should be remembered, however, that the above case
did not apply the article 5222 landlord's lien on crops and
may be distinguished on that ground.
The only real acvice
that can be given in this area is that a flr.ancer of crops
to be raised on leased property would do we?*
to have some
sort of arrangement with the landlord, before financing the
tenant's crops.
The lanclord-tenant statutes also give some protection to
the tenant.
Article 5236 provides that if the lrmulord.,with-
out default on the part of the tenant, fail' to comply in any
respect in his part of the contract, he will be responsible to
the tenant for whatever damages are sustained by the tenant. 1 6 ®
-2>
Further, the tenant is given a lien on all of the property of
the landlord in his possession not exempt from forced sale,
as well as upon all the rents due to the landlord under the
i6Q
contract. 7
3.
Warehouseman'^ Lien
The warehouseman's lien is a statutory lien provided by
I I 7.2C9 and 7.210 of the Texas Uniform Commercial Code. 1 7 0
8ectlon 7.209 provides that a warehouseman has a lien against
the bailor on the goods covered by a warehouse
receipt or on
the proceeds thereof in his possession for cnarges for storage
or transportation, Insurance, labor, or chirges present or future
In relation to the gooas, ana for expenses necessary for preservation of the goods or reasonably incurred in their sale
171
pursuant to law.
The section further provides that if the
person on whose account the goods are held is liable for like
charges and expenses in relation to other goods whenever deposited and it is stated In the receipt that a lien is claimed
for charges and expenses in relation to other goods, the warehouseman also has a lien apalnst them for such charges and
expenses whether or not the other goods have been delivered by
172
the warehouseman.
Against a person to whom a negotiable
varehouse receipt is duly negotiated, however, a warehouseman's
lien Is limited to charges In an amount or at a rate specified
in the receipt or if no charses are so specified then to a
-26reasonable charge for storage of the goods covered by the receipt
171
subsequent to the date of the receipt.
^
The comment to 7-209 explains that a specific lien' attaches
automatically, without express notation on the
174receipt, to
goods stored under a non-negotiable receipt.
That lien,
according to the comment, is limited to the usual charges arising out of a storage transaction.
Further, by notation on the
receipt It can be made a general
lien extencing to like charges
17 5
in relation to other goods.
^
The same rules apply when the
receipt Is negotiable, except that as against a holder by
due negotiation the lien is limited to the amount or rate
specified in the receipt, or, If none Is specified, to a reasonable charge for storage for the specific goods after the aate
of receipt. 1 7 6
Section 7.209(b) further provides that the warehouse-ran
may reserve a security interest against the bailor for.irtay.imum
amount specified on the receipt for charges other than those
177
above mentioned; such as for money advanced and interest.
This security interest is fov?rned by article 9.
1 9 ft
The
comments state that sub-sectiOn(b)provides for a security interest
179
based upon agreement.
'
buch a security interest, accorcii.g
to the comment, arises out of the rel£ions of the parties other
than bailment for storage or transportatio:, as where the
bailee assumes the rele of financer or performs a manufacturing
operation, extencing oreclt in reliance upon th«- toocs covered
by the receipt. 18 0
Ihe comment states that tnis security interest
-27Is not a statutory lien.
l82
respects by article 9;
l8l
It is therefore, governed in all
except that--)3«bcectlon(b$'requires
that the receipt specify a maximum amount ar.d limits the security interest to the amount specified.1®^*
The Texas version of 7.209(c) states that a warehouseman's
lien for a security interest under 7.209(b) is also effective
against a person who so entrusted the bailor with possession
of the goods that a plecge of them by him tc a good faith
18k
purchaser for value would have been valid.
The security
interest under 7.200(b), however, is not effective against a
person as tc whom the document confers
no right in the goods
• O r
covered by it under section 7.503.
Under Texas section
7.209(c) the warehouseman's specific lien for charges and expenses under section 7.209(a) is effective against any security
186
Interest.
The comments to 7.209(c) will net be discussed
because the Texas statute materially varies from the 1972
official text.
Section 7.209(d) provides that the warehouseman will
lose
his lien on any
gooustowhich
he 1voluntarily
delivers or which
he unjustifiably
refuses
deliver.
®''
The enfordement of a warehouseman's lien is covered by
188
section 7.210 of the code.
Section 7.210(a) proviaes for
the sale 06 goods stored by a merchant in tne ccurse of his
189
ousiness.
This section provides tnat the stored goods may
be sold at any rlace and time and on any ter-.s which are ccsm7
erctially reasonable. 190
All persons known to clilm an interest
-28in the stored goods must be notified.
191
7
This notice is re-
quired to include a statement of the amount due, the nature
of the proposed sale and the ticie and place of any public
192
sale.
7
The fact that a sale at a different time or in a
different manner would have been more profitable, is not in
itself evidence that the warehouseman
has been commercially
193
unreasonable in the sale.
If the warehouseman either,
(l) "sells the goods in the usual maimer in any recognized market therefore," or (2) "sells at the price current in such
market at the time of his sale," or (3) otherxcise sells in conformity with commercially reasonable practices among dealers
in the type of goods sold, he has sold in a commercially reasonigli
able manner,
7
Seotion 7.210(a) further states thit " a sale
of more goods than apparently necessary to be offered to insure
satisfaction of the ooligation is not commercially reasonable
except in cases covered by the three above commercially reasonable methods.
If the goods sold are other than goods stored by a r.er-
" c (•
chant in the course of his business section 7.2l-\ b) controls.*'1
The code lists the requirements for such a sale as follows:
(1) Allperscns known to clairs an interest in the
goods must be noti-fied,
(2) The notification must be deliverec in person or
sent by registered or certified mail to the l-~st
known address of any person to oe notified.
(3) The notification must i n d u c e an ltea3:&eCLfstatement of the claim, a description of tine
ptooos subject to the lien, a deraanc for payment
within a specified time not less than 10 aays
-29after receipt of the notification, ana a ccr.scicuous
statement that unless the claim is paid wit :in that
time the goods will be advertised for sale and sold
by auction at a specified time and place.
(4) The sale must conform to the terms of the notification.
(5) The sale r.ust be held at the nearest suitable
place to that where the goods are held or stored.
(6) After the expiration of the time given in the
notification, an advertisement of the sale must oe
published once a week for two weeks consecutively
in a newspaper of general circulation where the
sale is to be held. The advertisement must include
a description of the goods, the name of the person
on whose account they are being held, and the time
and place of the sale. The sale must take place
at least 15 days after the first publication. If
there is no newspaper of general circulation where
the sale is to be held, the advertisement must be
pdsted at least 10 days before the sale In not less
than six conspicuous places in the neighborhood of
the proposed
sale.197
Section 7.210(c) states that before the sale is held, any
person claiming a right in the goods m ay pay the amount
necessary to satisfy the lien and the reascnaole expenses in198
curred prusuant to section 7.210.
7
If this is done, the
goods are not to' be sdki, but the warehouseman must retain
ICQ
them subject to the terms of the receipt and article ?. ' 7
Section 7.210(d) provides that the warehouseman hitself
may buy at any public auction
or sale pursuant to section
Section 7.210(e) provides that a purchaser in goca faith
of poods sold to enforce a warehouseman's lier. takes the
goods free of any rights of persons against whom t-le lien wasv-xlld.^01
This is. true even thouph the ware.ncuserr.an fails ho
-30meet the requirements of section 7,210 In the conduct of
the sale. 2 ® 2
In section 7.210(f) It Is provided that the warehouseman
may satisfy his lien from the proceeds of any sale made pursuant to section 7.210, but Is required to hold the balance,
If any, for delivery on demand to any person to whom he would
201
have been bound to deliver the gooes. **
All the rights given in section 7.210 are in addition to
all other rights allowed, by law to a creditor against his
204
debtor.
Further, if the goods are stored by a merchant in
the course of his business, the lien may be enforced either by
section 7.210(a) or 7.210(b). 2 0 5
Finally, section 7.2i0(i)
provides that the warehouseman is liable for damages caused
by failure to meet the requirements of section 7.210, 2 0 6
and if the violation is willful, he will be liable for conversion, 2 0 7
208
In the case of Flores v. Lidear Van & Storage Co.,
a
Texas court of civil appelas had an otrortur.i t\ to interpret
the provisions of section 7.210.
In PI ores plaintiffs stored
their furniture with the defendant warehouse.
Plaintiff,
a military man, told defendant company he could always be reached by notifying his mother-in-law.
After the soocs had been in
storage a little over a year, the company sold thei for failure
to pay trie storage fee.
The warehouse said it had a statutory
warehouseman's lien and authority to foreclose the lien Tot nonpayment of thestorage charges.
The plaintiffs made out a prima
-31facie case of conversion,
2C9
thus shifting the burden tc
210
defendants to prove that a proper sale had been conducted.
The court found the defendants liable because of failure to
meet this burden. 211
The court stated:
A warehouseman has no personal remedy for selling
property for collection of charges at common law.
His remedy lies by foreclosure as is provided by
statutory law. The enforcement of such lien un&er
summary foreclosure procedures must be accomplished
in struct compliance with the terms of the statute
upon which such power is granted.
...
Defensively it was incumbent upon the storage
company in order to escape llaoiiity for conversion
to prove a valid sale under section 7.210. The
notice was defective as a matter of lav:. The defendant dla not prove a valla sale and is therefore
liable for the conversion of the plfentlff's property.
Thus, strict compliance with the statutory procedures for sale
under section 7.210 (b) is required in order for the warehouseman to escape conversion liability.
It must also be presumed
that the courts will also require vjarehousemen to strictly.
'. "
comply with the requirements of section 7.210(a) in the case of
goods stored by a merchant.
Although not interpreting the provisions of article 7, a
recent Texas Supreme Court decision aid involve the liabilities
and rights of a warehouseman In the storing of agricultural
2
products.
In Toyo Cotton Comcany v. Cotten Concentration Company,
the plaintiffs, in a declaratory Judgment action, brought suit
to determine if they were liable to defendant for payment of c
cotton storage charges.
Plaintiff tendered warehouse receipts
and made payment for accrued charges, but defendant was unable
-32to deliver because Its employees were on strike.
The storage
agreement between the parties stated that defendant would not
be liable for any delay or other consequences wnlch might result
from work stoppage caused by labor disputes.
The question then,
was not whether defendant was liable for failure to deliver
when requested, but whether storage charges continued to accrue
on the cotton after plaintiff's hac requested its witharawel
from storage but had been unable to obtain it.
Speaking for the
court, Chief Justice Greenhill statedi
Our reasoning is thot when defendant warehouse cannot perform as contemplated because of a strike of
its own employees, its own inability to perform is
not converted into an affirmative right to hold tne
plaintiff's cotton indefinitely and with impunity •
to the extent of requiring plaintiffs to pay for
services which, to say the least, they did not
desire.
Another lien provided in Article 7 is the carriers lien
section 7.307.
This section provides that a carrier has & lien
on all goods covered by a bill of lading for all charges subsequent to the date of its receipt of the goods for storage
or transr.ortation, ana for expenses necessary for preservation of goods incident to tneir transportation or reasonably
incurred in their sale pursuant to law.
The statute provides,
however, that against a purchaser for value of a negotiable bill
of lading, a carrier's lien is limited to charges stated in the
"Dill or the applicable tariffs, or if no charges are stated,
then to a reasonable charge.
Sub-section (b) of 7-307 delineates the scope of the lien
provided In sub-section (a).
Subsection (b) states that when
-33the carrier is required by law to receive the gooes for transportation the lien is effective against the consignor or any
person entitled to the goods, uniesc the carrier had notice that
the consignor lacked authority to subject the goods to the charges
and expenses.
•VnJirty'C-" oth«=r lien under subsection (a) is effect-
ive against the consignor and any person who permitted the
bailor to have control or possession of the goods, unless the
carrier had
notlde
that the bailor lacked such authority.
The statute also provides for loss of the lien upon voluntary
relinquishment of the goods by the carrier.
Section 7.308 provides for the manner of enforcement of the
carrier's lien.
This section provides for public or private
sale upda"notlce to interested persons and is' somewhat similar
to enforcement provisions of the warehouseman's lien under
section 7.210.
C.
Lien of Par
Laborer
Article 5^83 gives a farm laborer a lien to secure pay215
ment for services done under an oral or written contract.
The lien is upon all things that are created by the farm laborer's
efforts (e.g., crops) or upon things that may be used or useful to tne farm laborer or necessarily connected wi-.. the performance .of
his l a b o r . T h e
statute provides, however,
that the lien of a farm laborer is subordinate to a landlord's
217
lien.
The lien of a farm laborer is perfected by the pre-
paration of duplicate accounts; one to be presented to the em2l8
ployer, the other to be filed In the county clerk's office.
The presentation anc filing must be made within 30 days of the
-34acorual of the indebtedness. 21 ^
Most of the cases found dealing with this lien were of
ancient origin.
It seems that most farmers have either been
paying their help In recent years, or that farm laborers are
not being diligent In'protecting their rights.
It should be
noted that the cases indicate that the lien only applies to
actual laborers.
For example, the operator of a threshing
machine on a contract basis was held not to be withi.; the
220
meaning of the statute.
A modern comparison to this
might be the custom farming operation.
If an operator of
a threshing machine on a contract basis was not entitled to 221
the lient a custom farmer would probably not be so entitled.
B.
Stock Breeder's Lien
Amazingly, no cases were found construing this statutory
lien.
Article 5501 essentially states that the owner of
any stallion, Jack, bull, or boar, who keeps the same for the
purpose of standing for profit, has a lien on the progeny
222
of the stallion. Jack, bull, or ooar, for services performed.
Ihe statute states that It is not necessary to perfect the lien
by registering' or. filing any statement or contract with any
officer. 22 ^
The statute provides that this lien is to be en-
forced in the same manner as the statutory landlord's lien is
24
enforced.
The lien does not operate wnen the owner rep*e-
sents his stock by false pedigree.
The lien continues lor a
period of ten months from the birth of the progeny, but cannot
-35be enforced until five months after birth.
E.
Livery Stable and Pasturage (Agister's Lien)
Article 5502 states that proprietors of livery or public
stables shall nave a special lien on all animals placed with
them for feed ana care, for the amount of charges against the
same.
22?
The article also applies to owners or lessors of
pastures, -Mid gives them a lien on all animals placed with them
228
for pasturage.
The cases state that the livery stable owner and pasturer
are under a duty to exercise ordinary
care in the care of live220
stock placed in their keeping.
7
From a reacing of pre-code
cases, It would seem that the agister's lien is subordinate to'
a chattel mortgage which exists at the time the agister's lien
comes into b e i n g . T h e
same result could be reached under
the code from a reading of section 9.310 and article 3506.
This
result may not be correct after a recent court of civil appeals
decision which will be discussed ,in the next section.
Finally,
It should be noted that the agister's lien will not apply in a
.lease situation ^rhere the lessee has the sole right of control over the livestock in question} because the statute requires possession in the holder of the llen.2-^1
F.
Possessory L-len
Article 5503 provides that a mechanic, artisan, carpenter,
or other workman will have a lien on gooos left with him, for
-36the value of materials furnished and labor provided, in the
232
repair of those goods. ^
The lien is er.J c reed by retention of
i; 33
possession until the charges due have oeen fully paid.
The
work on the gooes must be authorized, or there will be no
lien.
The sale of property under article 5502 ana 5503 Is governed by article 5 5 0 4 . I f
the property held has been in the
artisan ' s or workman's possession for 60 days after trie charges
accrue, without payment, then the person in possession'Is to
23 5
notify the owner that the gooes will be sold. ^
The sale
authorized is a public one, the proceeds from the sale to be
applied to the debt.
Article 5506 provides thatt
Nothing ir this title shall be construed or consicerea
as in any manner imoalringor affecting the right of
the parties to create liens by special contract 1 or
agreement, nor shall it in any manner affect or impair other liens arising at common law or In equity,
or by any statute of this state, or any other lien
not treated under this title.
Section 9.310 of the Uniform Commercial Code states:
When a person in the ordinary course of his business furnishes services or materials vith respect
to gcoas subject to a security interest, a lien
upon goods in the possession of such person
given by statute or rule of law for such materials
or services takes priority over a perfectec securl-y
interest unless the lien is statutory and the statute
expressly provides otherwise.^
Absent the provisions of article 5506, thos.e statutory liens
provided in Title 90
that arfcse upon possession, woulc oe
prior to perfected security interests in the same poods. *"
-37Article 5506, however, can be Interpreted as "expressly prc24l
viding otherwise" as required by 9.310.
" T h e old Tex-is cases
seemed to hold that this was the operation and effect of article 5506, One case stated 1
This article [article 5506] serves to maintain
t--e priority of an existing cnattel mortgage over
the lien of,a livery stable keeper for tne care
of a horse.
In another case, it was saidt
In view of this article [article 5506] a lien for
pasturage obtained without authorization or consent
of a mortgagee hclaing a lien prior in tire tc tne
lien for pasturage is inferior to the lien of a
prior mortgagee.24"-?
Thug, the possessory liens of Title 902^4 D a y n o t c e p r i C r to
a valid security Interest wnich arose before the possessory
Interest of the statutory lien holder.
J
A recent case, however, has held otherwise.
246
v. Gulf Coast State Bank;
In Nelms
the court Interpreted section
9,310 to give priority to the possessory lien of a mechanic over
an existing security interest ir. the automobile despite'tie
provisions of article 5506.
The court felt that section;.
9.310 clearly stated that these possessory liens were prior
unless a statute expressly provided otherwise.
The court stated
that "We find no existing statute, including article 5506, which
.In our opinion, ^expressly provides otherwise.""2**7
Thus, if the Nelms case Is upheld, it wculd certainly be
authority for the proposition that the possessory lions of
artisan's, and agister's are prior to existing security interests
in the sa?ne goods.
It would not, of course, apply to the land-
-38lcrd's lien, which is not possessory, and which is specifically
excluded fro$ article 0.
Hopefully, the Supreme Court will
hear the Nelxs case and settle this important question.
G.
Cotton Under Lien
Article 5571 providesi
No person, firm, or corporation which s u D s e q u e n t l y
buys, sells, or ueals in any way with negotiable
warehouse receipts Issued by any public warehouseman to evidence cotton stored in a public warehouse
or which subsequently buys, sells, or deals in any
way with such cotton, shall be liable for conversion of said cotton because of the existence of
any lien or incumberance on said cotton in the
absence of actual knowledge of such lfeen or encumberance at the time of the claimed conversion. 2 ^ 3
In United States v. Hext, 2 ^ 9 the Fifth Circuit decided that
the statute did not apply when the secured party was an ager.cy
of the
United States Government. 2 ^ 0
The court stated that in
such a case federal law applied and tnen proceeded to apply
article 9 of the Uniform Commercial Code as the applicable
Federal law in problems involving secured trar.sactlons.
In
speaking of the Texas statute tr.e court stated i
The new statute Is essentially contrary both to
t'e general common law of conversiontattdto the
provisions governing security interests and documents of title under the Uniform Commercial Code.
It Is evident that the rights of the United States
arising from the operations of the FHA loan program
cannot be realistically subjected tc the possibility
that the governing law may be changed whenever tne
United States is s/ceessful in litigation In order
to prevent S'ich success in subsequent similar cases.
.
The real Importance of this part of the Hext case teecrs to be
th-^t Tex«as will not be acle to change its laws and expect
in
-39such a manner to govern the rights of agencies of the United
States government.
When the FHA 1E the secured part;, , tr.e
Fifth Circuit will apply federal law.
VII.
Mortgagee Rights
In Texas, a mortgage with a private power of sale with-
out Judicial foreclosure Is created by the deed of trust.
Texas is a lien theory state.
That Is, upon creation of a
mortgage, there is no title to t*e property in the mortgagee.
The rcortpagee can dispose of the mortgaged property only upon
default.
The mortgagee gets rents, revenues, and possession
only upon purchase at the sheriff's sale.
After the foreclosure
sale in Texas, the mortgagor has no statutory right to receem.
In Texas,the right to growing crops upon foreclosure
253
was decided in the early case of Willis v. Koore. "
In
W1111s
the mortgagor had contracted to sell crops growing upon the
mortgaged property before the day of foreclosure.
When the
foreclosure took place, however, the crops had not yet been removed.
The mortgagee contended that the crops were his.
The
court stated:
A mortgagor is entitled to sever In law or fact the
crops which stand upon his land at any time prior
to the destruction of his title by sale under the
mortgagej this results from his ownership and consequent rights tc the use and profits of the land,
the mortgage is taken with knowledge of that fact.2-*4.
Sales under the deed of trust are governed by article
3810.255
The statute first provides that all deed of trust
sales are to be made In the county where the land Is situated.
2
-40If the land is located in more than one county, statutory notice
of the sale Is posted in each of the counties where the land
is located, and the notice states which county the land will be
257
sold in. *"
Notice of the sale is by posting for tnree con-
secutive weeks in the county where the land is locatec, in
three conspicuous places
2 eg in that county, one of which must be
the courthouse door. °
The sale is to be a public sale, bet-
ween 10.00 am and 4pm of the first Tuesday of any month.
VIII,
Limitations
A.Real Property-Adverse possession
Adverse possession of real property in Texas is a riant
created cy statute. Under the Texas law, before title can be
gained through adverse possession; tr.e person against
whoa adverse possession is run must have a right to recover
oAf)
the land.
Adverse possession will not rur. against a nonpossessory interest in real property.
26 *
2£2
1.
3 year statute-
• uae in moaern times.
Article
i-
°f much
It was originally designee to settle
claims for title under forged land certificate.
2.
g year statute- To claim title under article >509
the adverse possessor must claim under a recorced aeed regular on its face.
The a v e r s e possessor must pay taxes prior
. to delinquency curing the same five years he is in possession
of the land.
3.
10 year statute- Article 5510 264 requires only
-41-
10 years actual possession.
There is no requirement of holding
•
under a deed and no notice to the true owner is requirec.
4.
Constructive Adverse Fossesglon- If an acverse
possessor goes into possession uncer the 10 year atatute, not
under a deed, and with no fencing, he will be entitled to
160 acres of land. 2 6 ^ If the adverse possessor eoes i n under
266
a deed the adverse possession is referable to the deed.
If
the deed has a defedtlve description, l6o acres will be acversed
possessed. 267
If the croperty is fenced, the use of pert of the
property is referable to the whole, just as under a deed.
3.
268
Personal Actions
1.
Article 5526-Two year statute of Limitations
This statute applies to the following sorts of
actions*
a.
Trespass for injury cone to the estate of
b.
Actions for detaining the personal property
c.
Actions for debt where thfc indebtedness is
another.
of another.
not evidenced by a contract in writing.
d.
Actions on stated or oten account;?.
Other
than current-accounts between merchants. In all accounts, excert between merchants dates of delivery of articles charged
shall be particularly specified, and limitations shall run from
the date of cellvery of each item, unless cthezwise specially
contracted.
-42e.
actions for injury aone to the person of
f.
actions for injury to the person of another
another.
and death ensued from such injury; ano the cause of action snail
be considered as having arisen at the ceath of the party injured.
g.
2.
actions of forcible entry and detainer
Article 5526(b) 2 7 0
All actions at law by carriers of property for
compensation or hire for the recovery of their charges, or any
part thereof, shall be' begun within three years from the time
the cause of action accrues and not after.
3.
Article 554?- Pour Statute of Limitations 271
This statute applies to the following sorts of
actlensi
a.
actions for indebtedness where the indebted-
ness Is evidence by or founded upon any contract in writing.
b.
actions for the penalty or for carnages on the
penal clause of a bond to convey real estate.
c.
actions by one partner against a co-partner
for settlement of partnership accounts; or upon mutual or current
accounts concerning trade of merchandise between merchant and
merchant; their factors or agents- ano the cause of action-
'
shall be considered to have accrued on a cessation of the dealings
in which they were Interested together.
4.
Article 5529 2 7 2
All other actions other tnan recovery of real estate
-43for which no limitation is otherwise provided shall be brought
within four years next after the right tc bring the &$$lQ*"ihave
accrued and not afterward.
IX.
Homestead and Personal Property Exemptions
A.
Homestead
The homestead exemption in Texas is constitutional,
The
Texas Constttution provides that the homestead of a, fussily or
of a single adult person shall, be exempt from forced sale,
273
J
except for purchase money, improvements.and taxes.
The
owner or clalmlnt of a homestead In Texas cannot sell or abandon
27k
the homestead without the consent of the other spouse.
The
constitution states thrt the rural homestead shall consist of
not more than 200 acres of land
274 which may be in one or more
parcels, with improvements.
The urban homestead consists of
a lot or lots valued at not more than $10,000 at the time of
homestead designation, without reference to the value of any
improvements.2"''^
The urban homestead
277may consist of both
a residence and business homestead.
The constitutic.\ aljo
provides that temporary renting of the homestead
will not be
considered to change the nature of the homestead, as long as a
new homestead has not been acquired.2'''®
Article 3833 provides that the rural homestead shall be
200 acres for a family or 100 acres for a single a&ult person,
270
not a constituent of a family.
The constitution makes no
mention of this distinction between tne family and the sinfile
pOri
adult person for the purpose of size of the rural homestead.
-44Therefore the constitutionality of the statute in this regard
may be suspect.
Article 3841 allows the owner of a rural homestead to
2R1
voluntarily designate his homestead.
The statute says that
It shall be lawful for the head of the famil" tc designate and
set apart the homestead, not excedflmg 200 acres, to which the
282
family is entitled to under the constitution.
Tf there is
no voluntary designation, the sheriff can require defendant in
execution, who is the owner of a homestead, to set his homestead a p a r t . F a i l u r e
of the homestead owner to so designate
allows the sheriff to partition his property in accordance with
284
law.
If the homestead owner, who is a defendant in execu-
tion, fails to designate within 10 days, the officer holfting
the execution sale summons three disinterested freeholders of
the county to act as aommissioners to designate a homestead for
the defendant. 2 ® 5
B. Personal Property Exemptions
Article 3836 provides for an exemcticn of certain types
286
of property from forced sale.
The statute places a Goilar
limitation on the exemption of $15,000 for a single person and
$30,000 for a family. 2 ® 7
Article 3836(a) breaks the exemption
into seven specifically enumerated categories 1
1.
furnishings of a home including favlly hettlooms,
and provisions for consumption
2.
Implements of farming and ranchincs toe',
equipment, apparatus, (including a boat) and books used in
any trade or profession,
wearing apparel, two firearms ano
athletic and sporting equipment
-45The great weight of authority exempts all farming and ranching
28Q
toils and machinery.
There are a few authorities, however,
2Q C
which would exclude heavy machinery from the exeunt category.
The question of whether a rice allotment was an "implement
cf husbandry" was before the court in the case of In re Adams.^^
The trustee .in bankruptcy claimed that he succeedec to the
bankrupt's interest in rice allotments becuase of the provisions of Section 70(a)(5) of the bankruptcy act.
The court
affirmed the referee's conclusion that the rice allotments were
property'of the bankrupt to which the trustee succeeded.
The
bankrupt, however, argued that his rice allotment could not be
trar.sfereed during bankruptcy.
The feceral statute vrovicec that
If the rice allotment was to be transferfec outside of the
owner's family, the transferee must also receive " the entire
farming operation pertaining to rice including all psroductlon
and harvesting equipment and any irrigation equipment not
permanently attached to the land."
The Eexas statute exempts
from turnover, however, "all implements of husbandry" [now
implements of farming reasonably necessary etc.], which would
include production, harvesting, and irrigation equipment.
if the bankrupt is ordered to transfer his ri
Thus,
allotment, he
will be forced to also convey all his rice farming tools In
derogation of the Texas statute. The court then statedt
The federal statute's connection of the acreage allotment with the tanglcle farming equipment suggests 1dentical treatment in bankruptcy. An acreage allotment
could be considered an Implement of husbandry and given
the same protection from turnover. The importance
-46of acreage allotments to the mouefn farmer suggests
that the allotment might be more important tnan physical tpols to the future livlihooa of the bankrupt
fanner.
The court concluded that becuase the referee hac not considered
whether the allotment shoulc have exempt status, the case should
be remanded to allow the referee to make the initial determination.
3.
this portion of article 3836 provides for exemption
from execution certain means of transportation.
4.
exempt.
In this portion animals in specified numbers are
This exemption includes!
5 cows and their calves, one
breeding age oull, 20 hogs, 20 sheep, 20 f-oats, 50 chickens,
30 turkeys, 30 aucks, 30 geese, and 30 guineas.
5. a dog, a cat, and other household pets are exempt
6.
this clause exempts the cash surrender value of
insurance policies.
7.
exempt.
current wages for personal services are nere
It may be questionaole
.ether the collar limitation
applies to thispart of the exemption because
the- constitution
exempts from garnishaont all current wages for personal services.
As applied to the modern farmer, the exemption statute may
not be that helrful.
It must be remembered that so-e .roccrr. day
fariring equipment is very expensive ana th<»t the $l£,000 or 330,000
exemption would possibly be consumed very rapidly.
It should be further noted that article 3840 makes a lanelord* s claim for rent superior to the personal
property exemption
-47»t-.<i that
f"ri.on-«l profi^rty rx<:mt tlon cn.fi r w a i v e d
XV 4
r>y volun-
tary fcncumberance.
X.
Conclusion
In writing a parer with such a broad scOpe, conclusions are
rather difficult.
It should be noted at this point, however,
that knowledge of the remedies and procedures mentioned in t*is
paper is essential to the practicing attorney.
Furt*®*-, it car.
be concluded tnat many of the creditors remedies men-tloned do have a tremendous Impact on the agricultural community.
With these points in-mind, a lawyer whose practice includes the
representation of farmers or their creditors, would ao well to
have a working knowledge of creditor's rights under state law.
Footnotes
1.- "As an involuntary lien, the abstract of judgment lien
will not reach the residence hotaeateac of the Judgment debtor.
Neither does such an abstract of Judgment lien become a lien when
the Judgment debtor conveys the homestead. The burcon to show
abandonment of the homestear. is on the Jucgment creditor. £ut
the Judgment lien will attach to the; «a£ees<s In a homestead over
and above the contltutlonal exemption. Property purchased for a
homestead and devotee immediately to such par.ose will oe exempt
to the purchaser notwithstanding the existence of a recorded
abstract of Judgment lien at that time. But the Judgment lien
does not att-ch to the homestead on the death of the juc: r.ent
debtor as against his heirs. • Huospeth, Judgment Liens ar.a Aostrgcts
of Judgment in Texas, 32 Tex. B. J. 520, 521 (1969).
2.
Hudspeth, Judgment LIBBS and Abstracts of Judgment in
Texas. 32 Tex. o. J. 520 (1969).
3.
Id.
4.
Gillette Gin Co. v. Oliver, 8 Tex 132, l4 b.W. 451
(1590).
5.
Eastham v. Sollis, 60 Tex. 576 (1884).
6.
Tex. Rev. Civ. Stat. Ann. art 5449 (1958), provices
that tie Judgment lien arises upon recording and ir.cexing of the
abstract of Juaprcent.
Traweek v. Simmons, 72 S.
2d 6^9 (Tex.
Civ. App.**Gaiveston 1'934, no writ).
7.
Tex. Rev. Civ. Stat. Ann. art 544? (1958).
8.
Id.
9* - Id.
The provisions of article 5449 provide that the
recording ana indexing "operate as a lien upon
of tre real
estate of the defendant situated in the county where such record and index are made.
Tex. Rev. Civ. Stat.Ann. art 5449
(1958).
10.
Tex. Rev. Civ. Stat. Ann. art 5448 (1958).
11.
See note 6 surra.
12.
The recording operates as a lien on all real proterty
"in the county in which such record
and abstract are mace. . . ."
Thus, the lien would be effective in any county the judgment
creditor decided to record ana index an abstract of Judgment.
Tex. Rev. Civ. Stat. Ann. art. 5449 ( 1958).
13.
Tex. Rev. Civ* Stat.Ann. art 5449 (1958).
14.
Tex. Rev. Civ. St£.t. Ann. art. 3?73 (1966).
15.
Id.
16.
lex. Rev. Civ. Stat. Ann. art 5^49 (1958'
Tex, Rev.
Civ. Stat. Ann. art. 3773 (1966).
1?.
See note 13 and accompanying text supra.
18.
Id.
19.
See notes 8-9 and accompanying text supra.
20.
Hudspeth, Judgment Liens and Abstracts of Juda-ent. in
Texas. 32 Rex. B. J." 520, 521 (1969).
21.
Robertson v. Scott, l4l Tex. 374, 172 S.W. 2d 4?8 (1943).
22.
Hudspeth. Judgment Liens and Abstracts of Judgment lr:
Texas. 32 Tex. 3. J. 520. 521 (1069).
23.
Thompson v. Mayhem Lumber Co., 1C3 S.w. 2d 1C05 (Tex.
Civ. App.—El Paso 1937).
*
*
24.
34 Tex. Jur. 2d § 583 at p. 697.
25.
Hudspeth, Judgment Liens and Aostracts of Judgment in
Texas, 32 Tex. 6. J. 520, 522 (1969).
26.
Id.
27.
Id.
28.
Tex. S. Civ. p. 621
29.
id.
30.
Tex. R. Civ. P. 622
31.
32.
Tex. R. Civ. P. 627
33.
Tex. R. Civ. P 622
3^.
Tex. R. Civ. P. 629
35. id.
36.
Tex. P.. Civ. P. 630-33.
Rule 63c provides that v/.sn
an execution is issued upon a Judrment for a sum of money» zr.e
execution must specify the amount of money recovered ancf.e amount
actually cue when the execution was issued.
Rule 631 provides that
an execution Issued upon a Judgment for the sale of particular
property (real or personal) must particularly aescrloe the property
and require the officer to give public notice of the sale.
Rule
632 provides that an execution upon a Judgment for the delivery
of specific property (real or personal) shall describe the property and designate the
ession.
person
to whom the Judgment awards poss-
Rule 633 operates in the situation of execution in en-
forcement of a judgment for specific personal property or its
valuA.
Thie writ commands the officcr, that in the event de-
livery of the property cannot be effectea, to levy ana collect the
value of this property, out of any property of the Judgment
debtor that Is subject to execution.
37.
Tex. R. Civ. p. 634.
38.
36 Tex. Jur. 2d, Levy and Selzufe, § 34 at p. 202.
39.
Tex. h. civ. p. 637.
40.
Id.
41.
Id.
42.
Id.
43.
Tex. Ja. Civ. p. 638.
44.
Tex. R. Civ. p. 637.
45.
Tex. B.Clv.' p. 639.
46.
id.
47.
Supposedly becuase tne officer is not r-quired to rake
an actual "seizure" of the property as in uoit cases of levy.
48.
Id.
49.
Id.
50.
Tex R. Civ. p. 640.
51.
Id.
52.
113 S.W. 2d 566 (Tex. Civ. A pp.—Texarkana 1938, n0 writ).
'Two other cases dealing with the "range levy" are Gunter v. Cobb,
17 S.W. 848 (Tex. 1891) and Lindsay v. Cook. 91 Tex 46, 44 S.W.
276 (1898).
53.
Williams v. LeBaca, 113 S.W. 2d 566, 571-72 (Tex. Civ.
App.—Texarkana 1938, no writ).
54.
Gulf Stream Realty Co., v. Konte Alto Citrus Assn.,
253 S.W. 2d 933 (Tex. Civ. App. San Antonio 1952, writ ref'd).
55.
191 S.W. 2d 774 (Tex. Civ. A p p — S a n Antonio 1945. writ
ref'd n.r.e.).
56.
71 Tex. 19, 8 S.W. 922 (1888).
57.
Id.
The Contes
case went on to sr,y that because such
acts would be an Invasion of the homestead right then no such
levy of growing crops could be made on t-e homestead.
58.
191 S.W. 2d at 778 ,
J
59.
Id.
6c.
Id.
61.
Tex. P.. Civ. F. 641.
62.
Tex. R. Civ. p. 642
63.
Tex. R. Civ. p. 643
64.
Id.
65.
Tex. h. Civ. p. 644-46
66.
Id.
67. Tex. a. tfiv. f. 646a-48
68.
Tex. k. Civ. p. 648
69.
Tex. P.. C*v. F. 646a
70.
Id.
71.
Tex. R. Civ. p. 647
72.
Id.
73.
Tex. Rev. Civ. stat Ann. art. 3606
74.
Id.
75.
Tex. Rev. Civ. Stat. Ann. art. 3807
76/
Id.
77.
Id.
78.
Id.
79.
Tex. R. Civ, p. 649-50
80.
Id.
81.
Id.'
82.
Id.
00
.
86.
Tex. Rev. Civ. Stat. Ann. art. 300 (1973).
87.
Tex. Rev. Civ. Stat. Ann. art. 275 (1973).
88,
Id.
00
VR\
CO
Tex. Rev. Civ. Stat. Ann. art. 288 (1973).
VO
•
Id.
Id. These grounds arei
a. That the defendant is not a resident of
or is a foeeign coropoattlon or is acting as such.
b. That he is about to remove permanently out of the
state, and has refused to secure or pay the debt due the plaintiff
c. That he secretes himself so that the oviir.ary process can not be served on him
d. That he has secreted his property for the prupose
of defrauding his creditors.
e. That he is about to secrete his property for the purpose of cefraudlng his creditors.
f. That he is about to resove his property out of the
state without leaving sufficient remairing for- the payment of his
debts.
g. That he is about to remove his property, or a part
thereof, out of the county where the suit is brought, with intent to defraud his creditors.
h. That he has disposed of his pr. ~t.v, in trhole
or in part, with Intent to defraud his credo^ars.
1. That he is about to dispose of his property with
intent to defraud his creditors.
J. That he is about to convert his property, or a part
thereof, into money, for the purpose of placing it oeyond the
reach of his creditors.
k. That the debt is due for property obtained under
false pretenses.
90.
Tex. Rev. Civ. Stat. Ann art 276 (1973).
91.
Tex. Rev. Civ. Stat. Ann. art 277 (1973).
92.
Tex. Rev. Civ. Stat. Ann. art. 279 (1973).
93.
Id.
94.
Tex. Rev. Civ,. Stgfo *Ann art 2BB (1973).
95.
Id.
96.
Tex. Rev. Civ. Stat. Ann art 282 (1973).
97.
Tex. Rev. Civ. Stat. Ann. art 2SC (1973).
98.
Id.
99.
Tex. Rev. Civ. Stat. Ann. art 3C0 (1973).
100.
Tex Rev. Civ. Stat. Ann. art 301 (1973).
101.
Tex. R. Civ. F.
102.
Id.
103.
Id.
104.
26 Tex. Jur. 2d Garnishment § 1 at 663.
105.
Tex. Rev. Civ. Stat. Ann. art. 4076 (1966 ).
106.
Id.
107.
Id.
108.
Tex. Rev. Civ. Stat. Ann. art 4084 ( 1 9 6 6 ) .
109.
Id.
600
110.Tex. R. Civ. p. 664.
111.
Tex. R. Civ. p. -66l.
112.
Tex. R. Civ. p. 665
113.
Tex. R. Civ. p. 666,667
114.
Tex. R. .Civ. p. 668
115.
Tex. R. Civ. F. 669
116.
Tex. R. Civ. P. 673.
117.
Tex. Rv Civ. P. 674
118.
Tex. R. Civ. P. 678
11$.
Comment, Cotton Allotments t Another Kfev Pre:-..arty ,
45 Tex. I. Rev. 73**. 749 (1967).
120.
Tex. R. Civ. p. 737
121.
Id.
122.
Tex. Bus. & Comm. Code„ Ann. sec. 24.02 (1968).
123.
Comment, Cotton Allotments!
Another New Property,
45 Tex. L. Rev. 734, 749 (19*
124.
Id. at 746.
125.
Id. at 74?
126.
at ?48.
12?.
Id. at 749.
128.
Id*
129.
Id. at 750
130.
Id.
131.
Id.
132.
Id.
133.
Id.
1*4.
W
135.
Id.
136.
Id.
at 751.
137. .Id.
138.
Allen v. David, 334
139.
The Texas statutory
of the Texas Business and Commerce Code.
140.
Although the Texas Statute does have a discharge pro-
vision, this part is obviously invalid because the Congress
has exercised its exclusive Jurisdiction to control bar.Vru . tcy
matters.
141.
See section 23.02 Texas 3uslness and Commerce Code.
I
142.
Section 23.09
143.
6 Tex. Jur. 2d S€»c. 44 at p. 504.
144.
For example
the statute requires a written assignment
and requires the assignment to be recorded.
The statutory
assignment requires the preparation of the list of creditors and
an inventory of the value of the estate.. Sec. 23.08
145.
See. for example 31 3 • S. G
146.
Tex. Rev. Civ. Stat. Ann. art. 5222 (1962).
147.
Id.
148.
Id.
149.
Id.
150.
11'
151.
Id.
152.
Tex. Rev,. Civ. Stat. Ann. art 5223 ( 1962).
153.
11-
15^.
Id.
155.
Tex. Rev . Civ, Stat. Ann. art. 3224 (1962).
156.
Tex. Rev . Civ. Stat. Ann. art. 5225 (1962).
157.
Tex. Rev . Civ. Stat. Ann. art. 5226 (1962).
158.
M-
159.
Tex. Rev . Civ. Stat. Ann. art. 5327 (1962).
160.
110 Tex. 4, 214 S.W. 301 (1919).
161.
Firth v. Wright, 113 S.W. 453, 456 (Tex. Civ.
sec. 191 (197C).
Amarlllo , 1915).
162.
Id. at 457.
163.
36 Tex. Jur. 2d sec. 191 at p. 22-23.
164.
Beneficial Finance Co. v. Van Shaw,
S.W. 2d 772
(Tex. Civ. Ape.—Eastlaad 1972, no writ).
165.
Id.
166.
Tex. Bus. & Comm. Code Ann. sed. 9.402 (196S).
167.
Tex. Rev. Civ. Stat. Ann. art. 5222 (1962).
168.
Tex. Rev. Civ. Stat. Ann. art. 5236 (1962).
169.
Id.
170.
Tex. Bus. & Coram, fcode Ann. sec. 7.2C9 (106S).
172.
Id.
174.
Tex. Bus. & Comm. Code Ann. sec. 7.209 ( 1968)(comment 1).
175-
Id.
176.
Id.
177.
Tex. Bus. & Comm. <-^ode Ann. sec. 7.209(b) (1968).
178.
Id. (see comment 2)
179.
Id.
180.
Id.
181.
Id.
182.
Id.
183.
Id.
184.
Tex. 3us. & Comm. Code Ann. sec 7.209(c) (1968).
185.
Texas Business and Commerce Code section 7.503 pro-
vides that a document of title confiers no right in goods against
a person who before issuance of the document had a legal Interest
or a perfeoted security Interest in them and who neither
1. delievered them or entrustedthem or any document of
title covering them to the bailor or his nominee with actual or
apparent authority to ship, store or sell or with power to obtain delivery under this article or with power of di sposi".:ion
under thfes act. , nor
2. acuulesed in the procurement by the bailor or his
nominee of any document cf title.
186.
Tex. 3us. & Comm. Code Ann. sec. 7.209(c) (1968).
187.
Tex. Bus. &. Comm. Code Ann. sec. 7.209 (a) (1968).
188.
Tex. m s . & Comm. Code Ann. sec. 7.210 (19^8).
189.
Id.
190.
Id.
191.
Id.
192.
Id.
193.
Id.
194.
195.
Id.
196.
Tex. Bus. & '"omm. Code Ann. sec. 7.209(b) (1968).
197.
Id.
198.
Tex. 3us. & Comm. Code Ann. sec. 7. 210 (c) (1968).
199.
Id.
200.
Tex. Bus. & Bomm. Code Ann. sec. 7.210(d) (1968).
201.
Tex. aus. & Somm. Code Ann. sec. 7.210(e) (19^8).
202.
Id.
203.
Tex. Bus.
204.
Tex. Bus. & Comm. Code Ann. sec. 7.210(g) C 9 £ % ) .
205.
rex. B1 s. & Comm. Code Ann. sec. 7.210(h) (1C6S).
206.
Tex. Bus. & Comm. Code Ann. sec. 7.210(1) (1968).
207.
Id.
208.
489 S.W. 2d 406 (Tex. Civ. App.- -Corpus Christ! 1972,
-
&••
Comm. Code . Ann sec. 7.210(f) ( 1968).
no writt •
209.
The court stated that such a prima facie cape was made
out by showing ownership in the plaintiffs, possession by the
defendant, exercise of dominion of the coode by the defend;-*
and failure of defendant to surrender possession to plaint', ff on
demand.
Id.
210.
Id.
211.
Id.
212.
Id..
213.
461 S.W. 2d 116 (Tex. 19?1).
214.
Id.
215.
rex. Rev. Civ. Stat.. Ann. art >483 ( 1958).
Id'.
217.
Id-
216.
Tex. Rev. Civ. Stat. Ann. art 5^86 (1958).
219.
Id.
220.
Fanners Elevator Co. v. Advance Thresher Co., 189 S.W.
1018 (Tex. Civ. App.—Dallas
1916, wfclt ref'd).
221.
See case at note 220 supra
222.
Tex. Btev. Civ. Stat." Ann. art. 5501 (1958).
223.
Id.
224.
Id.
225.
Id.
226.
Id.
227.
Tex. Rev, Civ. Stat. Ann. art. 5502 (1956).
228.
Id.
229.
Attaway v. Schmidt and Maaigan Groc . Co., 188
1010 (Tex. Civ. App. 1916).
230.
31alock & Son v.san Antonio Cattle Loan Co., 26? S.W.
474 (Tex. Comm. App. 1925); Willaims v. DeBacs. 117 S.W.2d
566 (Tex. Civ. Ape.—Texarkana 1938, no writ).
231.
tflnaes v. Lock, 259 S.W. 156 (Tex. Comm. App. 192-.-).
232.
Tex. Rev. Civ. Stat. Ann art. 5503 (1958',.
233.
Id.
234.
Tex. Rev. Civ. Stat. Ann art. 5504 (1958).
235.
Id.
236.
Id.
237.
Tex. Rev. Civ. Stat. Ann. art 5506 (1958).
238.
Tex. Bus. & Comm. Code sec. 9.310 (1968).
239.
Articles 5502 and 5503.
240.
See Tex. 3us. & Comm Code Ann set 9.310 (1968).
241.
That is, article 5506 allows the parties to contract
away the provisions of the statutes,
242.
Texas Bank & Trust v. Smith, 108 Tex. 265, 192 S. A.
533 (1<»17).
243.
San Antonio Cattle Loan Co. v. Blalock & son, 2*6 L.a.
9?4 (Tex. Civ. A p p . — San Antfcnio 1923) aff »d 26? S.W. 474.
244.
Articles 5502 and 5503.
245.
See notes 237-244 supra.
246. 5X6 S.W. 2d
421
(Tex. Civ. App.—Houston [lfit
List.] 1975V-no writ).
247.
Id.
248.
Tex. Rev. Civ. Stat. Ann. art. 5571 ( 1958).
249.
444 F.2d 804 (5t Cir. 1971).
250.
l£.
251.
Id.
252.
Johnson v. Snell, 504 S.W. 2d 397 (Tex. 1973).
253.
59 Tex. 829 (1883).
254..
Id.
255.
Tex. Rev. Civ. Stat. Ann. art. 3810
256.
Id.
257.
Id.
258.
Id.
259.
260.
Beaton v. Rueh, 113 Tex. 176, 252 S.W. 1025 (Tex.
App. 19 23).
26l.
Id.
262.
Tex. Rev. Civ. Stat. Ann. art . 5507 (1958).
263.
Tex. Rev. Civ. Stat. Ann. art 5509 (1958).
264.
Tex. hev. Civ. Stet. Ann. art 5510 (1958).
265.
Id.
266.
Id.
267.
268.
Id.
269.
Tex. Rev. Civ. Stat. Ann. art 5526 (1958).
2?0.
Tex. Rev. Civ. Stat. Ann. art 5526(b) (1975 pocket
271.
Tex. Rev. Civ. Stat. Ann. art 55^7 (1958).
272.
Tex. Rev. Civ. Stat. Ann. art. 5529 (1958).
2?£.
Tex. Const, art. XVI sec. 50
274.
Id.
275.
Tex. Const, art. XVI sec. 51
276.
Id.
277.
Id.
278.
Id.
279.
Tex. Rev. Civ. Stat. Ann. art 3833 (1966).
280.
Tex. Const. Art. XVI sec. 51
281.
Tex. Rev.' Civ. Stat. Ann. art. 3841 (1966).
282.
Id.-
283.
Tex. Rev. Civ. Stat. Ann. art. 384^, 384? (1966).
284.
Id.
285.
Tex. Rev. Civ. Stat. Ann. art. 3830 (1966).
286.
Tex. Rev. Civ. Stat. Ann. art 3836 (1966).
287.
Id.
288.
Id.
289.
KcKnlght, y:odernization of Texas Leotor-Exemrtion
Statutes Short of Constitutional Reform, Tex. 3. J. (Dec. 1972),
290.
Id.
291.
35? F. Supp. 1164 (1973).
292.
Id.
293.
Tex. Rev. CIV. Stat. Ann. art 3836a (1966).
294.
Tex. Rev. Civ. Stat. Ann. art 3840. (1966).