A B C Stores, Inc. v. Houston Showcase & Mfg. Co.

LEVY, J. (after stating the facts as above). The pertinent proposition of appellant is to the effect that the judgment against it, except as to the foreclosure of the lien, was invalid. The mortgagee obtained judgment in its favor against the mortgagor for the amount of the notes, with foreclosure of the lien on all the mortgaged property, as against the mortgagor and appellant, with order of sale of all the property to satisfy the debt, and further recovered a personal judgment against the appellant, as for conversion, in the maximum sum of $300, “in the event the property is not forthcoming, or if the proceeds of any sale thereof hereinabove ordered shall be insufficient to satisfy same (the debt against Roberts). Such form of judgment, as correctly urged by appellant, is erroneous. The statute expressly provided what the judgment “shall be” of foreclosure of mortgage liens. Article 2218, R. S. And, as held, it is error, as not being in accordance with the statute, -to adjudge in favor of the mortgagee against a third party the value of the property, or the amount of the debt, in case such third party “fails to deliver the property to the sheriff.” Frankel v. Byers, 71 Tex. 308, 9 S. W. 160. Further, the mortgagee is not entitled to a judgment foreclosing his lien on all the property with order of sale, and at the same time have a personal judgment, as of conversion against a third party for the value of all the property. Smith v. Wall (Tex. Civ. App.) 230 S. W. 759. In the instant case all of the property was on hand and available for seizure on the proper legal writ. None of the property was lost, destroyed, or beyond the jurisdiction of the court. The appellee answered the proposition of appellant by saying “that the mortgagee can pursue both remedies, of foreclosure and damages for conversion, when done by alternative pleading.” Alternative pleading is to meet the possible results of the evidence as it might be developed at the trial. In this way the plaintiff who has a meritorious case might succeed on one count, while failing in the other. But the ultimate judgment permissible in such pleading is another thing, legally speaking. The plaintiff ordinarily must ‘ take judgment, according to proof, upon the one count or the other count. He cannot take the judgment upon both counts, pleading in the alternative as in the nature of distinct relief. The theory of separate or alternative counts is that each is a complete cause of action, as distinct from the other as if it stood alone in the pleading. Yet there may be circumstances entitling a mortgagee to pursue both remedies when done by proper pleading in separate count. For instance, it may be that a mortgagee is prejudicially affected by the loss or destruction in some way of a part of the property mortgaged, occasioned by the alleged converter, with the remainder of the property available for seizure under- an order of sale. In such circumstances, upon proper pleading, the mortgagee may be entitled to foreclose the lien with order of sale' against the mortgagor and the converter as to the remainder of the property available, and to have personal judgment against the converter for the proven value of the particular property lost or destroyed or removed beyond the jurisdiction of the court. Such form of judg; ment, upon proper pleading and proof, is in the nature of distinct relief not otherwise obtainable to the mortgagee whose rights are affected and intermeddled with. But the present case is not that kind of case in pleading or proof. In this suit, as in the Frankel Case, supra, all of the property was available and forthcoming for sale under the order of sale. None of it was lost, destroyed, or beyond the jurisdiction of the court, and the pleading was in reality for a foreclosure of the lien on all the property, and for judgment against the alleged converter only “in the event the property shall not be forthcoming” when the sheriff undertook to make sale at a time posterior to the date of the judgment, “or if the proceeds of such sale shall be in *334 sufficient to satisfy such judgment.” Therefore, in view of the pleading and the proof, the judgment is reformed to the extent of denying any recovery of money in personal judgment against the appellant. It may be, in the circumstances, as urged, that appellant did not intend to deprive the mortgagee of the ultimate ownership of the property as well as immediate possession. Even so, the reformation of the judgment operates to correct such situation and still allow a foreclosure. The judgment will be reformed as above, and, as so reformed, will be in all things affirmed. The appellee, Houston Showcase & Manufacturing Company, will pay the costs of appeal.