Sherman v. Texas Hotel Supply Co.

SMITH, Justice. The appeal involves the question of the priority of a landlord’s lien asserted by appellant over a chattel mortgage lien asserted by appellee, upon certain supplies purchased.from appellee by the A. & C. Sandwich Shop and used by the latter in operating its business in a building rented from appellant and situated in the city of Corpus Christi. The chattel mortgage was executed on April '7, 1930, whereas, the lease contract of tenancy, upon which appellant asserted his lien, was executed on December 15, 1930. Subsequently the chattel mortgage and obligation secured by it were renewed for the balance) due upon the original debt secured. Appellant seeks to defeat the priority of the original lien upon the contention that the'renewal thereof released the prior lien; that appellee’s right to priority must be meas■ured by the renewal. We overrule this contention, upon the well-established rule that the taking of a second mortgage to secure the debt secured by a first mortgage on the same property does not operate as a satisfaction and release in law of the first mortgage, in the absence of an express or established intention to effect such release. 9 Tex. Jur. pp. 105, 185, §§ 22, 79. We do not think that appellee’s failure to specifically plead the renewal presented a fatal variance between pleading and proof, so as to defeat recovery upon the original debt and lien. The judgment is affirmed.