Hargadine-McKittrick Dry Goods Co. v. First National Bank

HUNTER, Associate Justice. In this case we adopt the conclusions of fact found by the District Court, and upon the conclusions of fact so found we are of opinion that the judgment ought to be affirmed, because: 1. The affidavit made for the trial of the right of property is not to be considered as a pleading, and the source or character of title set up therein is not binding upon the affiant or claimant, but the claim to the property must be tried on the pleadings tendering issues. Wetzel v. Simon, 87 Texas, 403; Hamburg v. Wood, 66 Texas, 168. 2. The appellee bank had the fixed and immediate right of possession at the time the levy of the attachment was made. The pleading and evidence show that the cattle had been moved out of the county without the consent of the bank, and article 3190b, Sayles’ Statutes (art. 3333, Rev. Stats., 1895), which in legal contemplation formed part of the mortgage, gave the bank instant right of possession;' and this right existed in full force at the time of the levy of the attachment, although appellant may not have known of the existence of the conditions which gave the right of possession under this article of the statute, to-wit, the removal of the cattle from the county without the consent of the bank. The judgment is therefore affirmed. Writ of error refused. Affirmed.