Liquid Carbonic Co. v. Logan (79 S.W.2d 632, 1935)

McCLENDON, Chief Justice.

This is the second appeal of this case [See former opinion Liquid Carbonic Co. v. Head (Tex. Civ. App.) 48 S.W.(2d) 464]. The instant contest is between appellant, holder of a purchase-money chattel mortgage on soda fountain fixtures, and Mrs. Head, holder of a landlord’s lien on the fixtures, which, however, was inferior to appellant’s. The latter recovered a personal judgment (without foreclosure) against Logan, the tenant, for the unpaid balance of its chattel mortgage debt. Mrs. Head was awarded title to the fixtures under a plea of limitation of two years. The case was tried upon an agreed ■■statement of facts; and the sole question presented is whether the limitation plea is supported by the record. The controlling facts follow:

Appellant’s mortgage provided for partial payments maturing July 5, 1929, and monthly thereafter. The suit was brought by Mrs. Head against the tenant and others, including appellant, to foreclose her landlord’s lien, and resulted in judgment by default against appellant on November 10, 1930. The property was sold under execution and bought in by Mrs. Head for $50 on December 19, 1930. On January 21, 1931, appellant sued out a writ of error, resulting in reversal of the trial court’s judgment. Liquid Carbonic Co. v. Head (Tex. Civ. App.) 48 S.W.(2d) 464. Mrs. Head applied to the Supreme Court for writ of error, which’was dismissed. On January 2, 1933, appellant filed an answer and cross-action upon its debt and lien. June 3, 1933, Mrs. Head filed an amended petition, in which for the first time she asserted title to the property by limitation; her prior pleadings -being predicated upon her landlord’s lien. This pleading is an alternative one, and in substance alleges that about June 1, 1930, the tenant (appellant’s mortgagor) abandoned the property in question, and that Mr