
    B. M. BURGHER & CO. et al. v. BARRY et al.
    (No. 2108.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 10, 1919.
    Rehearing Denied April 17, 1919.)
    Chattel Mortgages <®=»138(3) — Landlord’s Lien — Priority.
    Where a tenant purchased a soda fountain and executed a chattel mortgage thereon, and, being unable to pay for it, redelivered it to the vendor, who then made a sale to another person, who executed to the vendor a chattel mortgage on the fountain, leaving it in the store of the landlord, and at a later date the tenant moved from the premises, the purchaser of the fountain then becoming the tenant, and the mortgagee having paid rent to the landlord up to such date, the mortgage lien was prior to any lien of the landlord on account of subsequent rent.
    Error from District Court, Kaufman County; Joel A. Bond, Judge.
    Action by B. M. Burgher & Co. and others ■against O. E. Barry and others. From part of the judgment in favor of one of the defendants on a cross-action, the plaintiffs bring error.
    Reversed and rendered.
    The plaintiffs in error sued Joseph Sha-hada and C. C. Fox on certain notes and to foreclose a chattel mortgage on a soda fountain and appliances. The defendant in error Childress, made a party to the suit, by cross-action sought to have the landlord’s lien foreclosed on the same property to pay $180 rent alleged to be due and unpaid. The case was tried before the court without a jury. The appeal is only from that part of the judgment in favor of defendant in error Chil-dress for $180, which is based on the cross-action.
    The court made findings of fact which are sustained, we conclude, by the evidence. It was proven that the defendant in error Chil-dress, owner of a storehouse, rented it for one year from May 12, 1914, to E. L. Davis; but later, by agreement of the parties, C. C. Eox was substituted as the sole lessee. On July 16, 1914, C. C. Eox purchased from .’Grossman Company a soda fountain and appliances, and he executed a chattel mortgage on said property to secure payment of the purchase price of the same. On October 16, 1914, C. C. Pox, being unable to pay for the property, redelivered it to the Grossman Company, who then on that date made a sale of the same to Joseph Shahada. On the same day he bought this property Joseph Shahada executed a Chattel mortgage on the soda fountain and appliances to the Gross-man Company to secure the payment of the purchase money. The soda fountain was left in the storehouse of defendant in error by Joseph Shahada after his purchase from Fox. On December S, 1914, the Grossman Company paid to defendant in error Chil-dress the full amount of rent due by C. C. Eox to date, and from that date Eox ceased to be a tenant of defendant in error Childress. Defendant in error Childress, after the pay-jnent of the full amount of rent due by Eox, and on December 3, 1914, rented the storehouse, to Joseph Shahada, who entered into possession at once and became the only tenant of defendant in error Childress. On June 15, 1915, Joseph Shahada was in arrears and owed to defendant in error Childress a balance of $260 as rent due for 4½ months.
    Lee R. Stroud, of Kaufman, and Wood & Wood, of Dallas, for plaintiffs in error.
    Terry & Brown, of Kaufman, for defendants in error.
   LEVY, J.

(after stating the facts as above).

The only question for decision on appeal is as to the priority of liens. According to the findings of fact, Grossman Company had a chattel mortgage lien on the property which was executed by Joseph Shahada on October 16, 1914; and the rental contract between defendant in error Childress and Joseph Sha-hada originated and began on December 3, 1914. At the time of the rental contract of December 3, 1914, the defendant in error Childress had been paid in full all rent due him to that date. In these facts it is believed that the chattel mortgage lien is superior to and has priority over any lien in this case of the landlord Childress. Brackenridge v. Millan, 81 Tex. 17, 16 S. W. 555.

The judgment on the cross-action is reversed, and judgment is here entered in favor of the plaintiffs in error, with all costs. 
      <&=jFor otter eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes'
     