Both the Farmers' Merchants' National Bank and E. E. Edwards predicate error upon the ruling of the court denying to them and refusing to foreclose their chattel mortgage liens. There is no question of priority of liens, or of subsequent purchasers or mortgagees of the cattle involved in this case. Under the facts and circumstances shown the chattel mortgages were not so legally ineffective of identification as to be void, and the power of selection existed on the part of the mortgagees. Avery v. Poffer et al., 92 Tex. 337, *Page 254 48 S.W. 572, 49 S.W. 219, 50 S.W. 122, 71 Am. St. Rep. 849; Id. 179 U.S. 305,21 S. Ct. 94, 45 L. Ed. 203; Oxsheer v. Watt, 91 Tex. 124, 41 S.W. 466,66 Am. St. Rep. 863; Elliott v. Long, 77 Tex. 467, 14 S.W. 145; Pitluk Meyer v. Butler (Tex.Civ.App.) 156 S.W. 1136; Houston Bank v. Gregg Co. (Tex.Civ.App.) 202 S.W. 805. The cattle were specially marked and sold under order of the court separately, and the proceeds of said sale received and deposited specially in "account No. 2;" and therefore appellants have the right to subject all the proceeds to their liens.
There was no error in decreeing appellee Hampton the $800 as the value of his cattle. According to the evidence and findings the appellee Hampton was not a partner of Frank Jones, and was the owner of the cattle claimed by him as his own, and which were taken by the receiver into his possession and sold under the order of the court. Hence the appellee Hampton would be entitled to the proceeds of the sale of his cattle, and no other party would be entitled to priority over him in the proceeds of such sale. The proceeds of the sale of appellee Hampton's private cattle could not legally be applied on the debts of the Frank Jones estate or turned over to the administrator.
The order of the district court was erroneous, and is set aside, which directed the receiver to pay over to the administrator the $450 attorney's fees out of the proceeds of the sale of the mortgaged cattle. The proceeds of the sale of the other cattle, above the mortgaged cattle and the cattle owned by appellee Hampton, would be the general and unsecured assets and funds of the estate of Frank Jones, out of which the court should have ordered the receiver to pay to the administrator the said sum of money. The administrator was entitled to receive possession of such sum of money from the receiver out of such general and unpledged assets, and the receiver is entitled to be credited out of that fund on hand with the said sum of $450 so paid out to the administrator.
Error is further predicated upon the judgment as entered, in providing that it be certified to the probate court for observance. The proposition is that it was erroneous for the court to order that the judgment be certified to the probate court for observance, because the district court, having acquired jurisdiction before the death of Frank Jones, had full power and authority, notwithstanding the death of Frank Jones and the appointment of an administrator, to enforce and perform the judgment in their favor. The Farmers' Merchants' National Bank, E. E. Edwards, the Exchange State Bank, and Wade Hampton filed their pleadings during the lifetime of Frank Jones. All the other parties, except those above named, filed their interventions after the appointment of the administrator, and were not pertinent to the suit already filed by appellants. The Farmers' Merchants' National Bank, having a debt against Frank Jones secured by a chattel mortgage on cattle, first brought the suit and applied for appointment of a receiver. On the filing of the suit the court had the right, on the application made, to appoint a receiver to take possession and control of the mortgaged property. Article 2128, R.S.
The filing of the suit was the commencement of the action, and by the terms of the statute it did not abate by the death of the defendant Frank Jones. Article 1888, R.S. Having full jurisdiction over the subject-matter and the property to the extent of the claims under mortgage of the Farmers' Merchants' National Bank, E. E. Edwards, and the Exchange State Bank, and the claim of ownership by Wade Hampton, the district court could, under the terms of article 1888, legally proceed to judgment such as would be authorized by law. The death of Frank Jones and the appointment of an administrator did not terminate the power of the district court to render, in this case, a judgment as follows: On the notes, foreclosing the chattel mortgages, decreeing a lien on the proceeds of the sale of the mortgaged cattle in the hands of the receiver, and applying such specific proceeds on the judgment indebtedness. But after such determination in the district court, the judgment, in virtue of the statute, should be performed exclusively through the probate court. Article 2004, R.S.; Lauraine v. Ashe,109 Tex. 69, 191 S.W. 563, 196 S.W. 501. The case of Lauraine v. Masterson (Tex.Civ.App.) 193 S.W. 708, has application to a different situation from the instant case. In the instant case Frank Jones alone owed the debt and owned the mortgaged property. In the Masterson Case, supra, the debt was jointly owed and the mortgage was upon property owned in common by A. C. Allen and Mrs. Margaret Allen. The court there held, and correctly so, that the district court had the power and should perform the judgment by proceeding to make the sale of the mortgaged property, because "the powers of the probate court were inadequate to grant plaintiff full relief." In other words, that the statute did not apply to that case. As said by the court:
The "defendant in error is entitled to have the whole of the property sold to pay the entire indebtedness, and this right often is, and may be in this case, of great importance. The probate court is without power to make a sale of the whole of the property, and defendant in error cannot be required to divide his claim and security and have one portion of the judgment enforced by a sale made by the probate court and the other by sale directed by the district court."
It is concluded that the judgment should be so modified as to allow and foreclose the *Page 255 chattel mortgages of the appellants, and to decree a lien upon the specific proceeds of the sale of the mortgaged cattle in the hands of the receiver in the amount of $2,920 in favor of the Farmers' Merchants' National Bank and of $900 in favor of E. E. Edwards, and that said amounts of the proceeds shall be applied on the respective judgment indebtedness due them, and to order the receiver to turn over to the administrator all the moneys and proceeds arising from the sale of all the mortgaged cattle, as well as the cattle that were not mortgaged, after paying Wade Hampton the sum of $800 as the value of his cattle, and to direct that the judgment shall be certified to the probate court of Tarrant county, Tex., to be there enforced and performed as directed and in accordance with law.
As modified, the judgment will be in all things affirmed; the costs of appeal are to be taxed against the administrator, payable in the due course of administration.