Mason v. Green

BEVY, J. (after stating the facts as above). [1] The appellant contends, under proper assignments of error, that the court erred (1) in crediting the debt adjudged due the defendant by the plaintiff on the note with the amount of damages awarded the plaintiff against the defendant for conversion of exempt property, and (2) in foreclosing the chattel mortgage lien on the property stated in the judgment. The entire property in controversy in the suit is property exempt from forced sale to a family. Some of this property was under the terms of the mortgage as “household furniture,” and the rest of the property was not covered by the mortgage. The court found that the property not covered by the mortgage was taken and converted, and he allowed the plaintiff damages therefor. The statute expressly provides that if the plaintiff’s suit be founded on a tort, as here, the defendant shall not be permitted to set off any debt due him by the plaintiff. Article 1329, R. S. And the courts especially declined to allow a set-off against claims arising out of exempt property. Craddock v. Goodwin, 54 Tex. 578; Cone v. Lewis, 64 Tex. 331; 24 R. C. L. p. 815, § 21. The purpose and spirit of the exemption law is protection of the exempt property from all manner of coercive process of the law. And to allow a set-off would result in a palpable evasion of the law. This assignment of error is sustained. [2-5] The contention that the chattel mortgage was void and should not have been foreclosed because the wife did not sign and acknowledge same is predicated upon article 6171j, Vernon’s Ann. Civ. St. Supp. 1918. The caption of that act (Acts General Laws 1915, p. 48), as well as the entire law (Vernon’s Ann. Civ. St. Supp. 1918, arts. 6171a-6171Z) refers and was intended to apply only to a “loan broker,” defined in section 1 (article 6171a) as: “A ‘loan broker’ is a person, firm or corporation who pursues the business of lending money upon interest and taking as security for the payment of sudh loan and interest an assignment of wages, or an assignment of wages with power of attorney to collect the same or other order for unpaid chattel mortgage or bill of sale upon household or kitchen furniture.” It is clearly an act undertaking to regulate the business of a loan- broker. Section 11, which té the section relied on by appellant, does make void, it is true, any “chattel mortgage upon the household and kitchen furniture of a married man” unless the wife consents to the chattel mortgage by signing with her husband and separately acknowledging the sama But this section, in the light of the preceding section 10 and the other sections and the caption of the act, refers to and applies only, we .think, to a chattel mortgage given to a “loan broker.” To make void a mortgage on household and kitchen furniture that is not executed by both, the husband and the wife is merely a mode or means of regulating “the business,” as defined in section 1, “of lending money upon interest and taking as security for the payment of such loan and interest * * * chattel mortgage * * * upon household or kitchen furniture.” And neither does the act undertake, expressly or by implication, to repeal any other existing statute pertaining to the giving of a chattel mortgage to per *831 sons not a “loan broker.” We have heretofore held, and still adhere to that ruling, that this act is inapplicable to a mortgage securing the purchase price of household furniture sold. Strickland v. Dobbs, 200 S. W. 1125. Hence, as the act in question is applicable only to a “loan broker,” article '3793, Vernon’s Sayles’ Civil Statutes (1914), would not be repealed. This article provides that a debt for rents and advances made by a landlord to the tenant may be secured by a lien on exempt personal property, as here. And in Rose v. Martin, 33 S. W. 284, it has been held that a chattel mortgage given by the owner on personal property exempt from forced sale is valid. The fact, then, that the husband alone signed the mortgage would not make, it void, as community property, as here, may be disposed of by the husband only. Article 4622, Vernon’s Sayles’ Civ. Stat. Therefore we think the court did not err in foreclosing the chattel mortgage. We have considered the other assignments, and think they should be overruled as presenting no reversible error. The judgment is so far reformed as to allow the appellant judgment for his damages of $184 and interest without crediting it on the amount of indebtedness adjudged due the appellee by appellant, and as so reformed to be in all things affirmed, the appellee to pay costs of appeal. Footnotes [1] other cases see same topic and KEY-NTJMBEIt in all Key-Numhered Digests and Indexes