Opinion
No. 2116.
April 3, 1919.
Appeal from District Court, Van Zandt County; Joel R. Bond, Judge.
Action by the Farmers' Lumber Company against the Blount-Decker Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered for defendant.
The appeal is from a proceeding in the trial of right to personal property valued at $833.92, wherein judgment was rendered in favor of the appellee. It appears that the Farmers' Lumber Company, the appellee, brought a suit against H. N. Quinn for debt, and at the time of the suit procured a writ of attachment against certain lumber seized as the property of Quinn. The appellant made claimant's affidavit and bond under the statute, alleging that the purchase of the lumber from it was procured by fraud and misrepresentation on the part of H. N. Quinn. It appears that the appellee obtained judgment against H. N. Quinn for the debt, with foreclosure of attachment lien on the lumber in controversy. At the time of the levy of the attachment on January 7, 1916, the lumber was in the possession of H. N. Quinn, who had received it in November and December, respectively, 1915, from the appellant. The evidence affirmatively establishes, it is concluded, that H:. N. Quinn at the time of the purchase of the lumber was insolvent, and that by false statements and misrepresentations he induced the appellant to sell and deliver the lumber to him, and that but for such statements and representations the said seller would not have parted with the possession of the lumber.
Wynne, Wynne Gilmore, of Wills Point, and Norman, Shook Gibson, of Rusk, fox appellant.
Stanford Sanders, of Canton, for appellee.
A sale procured by fraud or misrepsentation may be avoided by the seller, and the property retaken by him as his own. Morrison v. Adoue, 76 Tex. 255, 13 S.W. 166; Johnson v. Stratton, 6 Tex. Civ. App. 431, 25 S.W. 683; Parlin Orendorff v. Harrell, 8 Tex. Civ. App. 368, 27 S.W. 1084. And where the goods remain with the purchaser, as here, the right of the seller to retake them is superior to the claim of an attaching creditor; for the subsequent attaching creditor obtains no better right to the property than the fraudulent purchaser. Ensign v. Hoffield (Pa.) 4 A. 189; Starch Factory v. Landrum, 57 Iowa 573, 10 N.W. 900, 42 Am.Rep. 53; Taylor v. Mississippi Mills, 47 Ark. 247, 1 S.W. 283.
The judgment is reversed, and judgment is here rendered in favor of the appellant, with all costs.