Opinion
No. 4784.
March 27, 1969.
Appeal from the Court at Law, McLennan County, Carl Anderson, J.
James F. Greer, Frank M. Fitzpatrick, Jr., Waco, for appellants.
John B. McNamara, Jr., Waco, for appellee.
OPINION
Appellee brought this action against appellants for possession of a tandem trailer. The record shows that appellee is the owner and holder of note, and of a chattel mortgage on the trailer allegedly securing the note, by an assignment from the mortgagee. The mortgage was executed in November, 1963, and promptly filed with the county clerk. Appellants have possession of the trailer by an alleged purchase in good faith and for value from the mortgagor in December, 1964. Appellee based its right to possession on a foreclosure of its chattel mortgage lien. Appellants denied under oath that the lien had been foreclosed. Appellee's motion for summary judgment for possession of the trailer was granted by the trial court.
Both parties filed affidavits, and there are admissions and answers to interrogatories in the record. The only copy of the mortgage in evidence bears an unexplained endorsement of the county clerk that it was released, in August, 1966, after the filing of this suit but before the hearing on the motion for summary judgment.
There is no evidence that appellee had foreclosed its chattel mortgage lien prior to this lawsuit. A question is raised in the evidence as to whether the lien has been released. There is no basis in the record presented for the summary judgment awarding possession of the trailer to appellee.
Reversed and remanded.