Robinson Bros. & Co. v. Veal

Opinion by Willson, J. §311. Mortgagee has no right of action against an attaching creditor who sells the mortgaged properly. Article 2296, Rev. Stats., provides that “goods and chattels assigned or mortgaged as security for any debt or contract may be levied upon and sold on execution against the person making the pledge, assignment or mortgage subject thereto, and the purchaser shall be entitled to the possession when it is held by the pledgee, assignee or mortgagee, on complying with the conditions of the pledge, assignment or mortgage.” By levying his attachment upon and selling the mortgaged property, by due course of law, to satisfy his debt, the attaching creditor has committed no wrong or trespass against the rights of the mortgagee for which he could maintain an action. The mortgagee’s rights are fully protected by the law. Purchasers of the property at the attachment sale acquire the property subject to the mortgage lien of the mortgagee, and his remedy would be to follow the property with his prior lien into the hands of such purchasers. [Wright v. Henderson, 12 Tex. 43; Gilliam v. Henderson, 12 Tex. 47; Joost v. Seats, 19 Tex. 473; Belt v. Raguet, 27 Tex. 471.] Reversed and remanded.