Mitchell v. National Railway Building & Loan Ass'n.

• Decision Date: 18 February 1899
• Citation: 49 S.W. 624
• Parties: MITCHELL v. NATIONAL RAILWAY BUILDING & LOAN ASS'N.
• Court: Texas Court of Appeals

49 S.W. 624

MITCHELL v. NATIONAL RAILWAY BUILDING & LOAN ASS'N.

Court of Civil Appeals of Texas.

February 18, 1899.

Appeal from district court, Tarrant county; W. D. Harris, Judge.

Action by the National Railway Building & Loan Association against W. J. Mitchell and another. From a judgment for plaintiff, defendant Mitchell appeals. Affirmed.

Essex & Dycus, for appellant. Pruit & Smith, for appellee.

CONNER, C. J.

This suit was brought on a note, and to foreclose a deed of trust on certain property in Greenville, Tex. W. D. Wheeler and his wife executed the note and deed of trust, and were made parties defendant. It is alleged by appellee that appellant, Mitchell, subsequent to the making of the note and deed of trust, bought the property from Wheeler, and assumed the payment of the note as part of the consideration for the property. To this pleading the appellant, Mitchell, answered, denying the assumption, and setting up that the property was the homestead of Wheeler and wife at the time plaintiff acquired its alleged lien, and was not, therefore, subject to such lien. This answer purported to be for all the defendants, but Wheeler and wife filed an answer, signed by themselves individually, in which they denied the authority of any one to represent them in the suit, and repudiated the pleading setting up the homestead exemption in their behalf, admitted the justness of plaintiff's debt, alleged that Mitchell bought the property from them and assumed the payment of plaintiff's debt, and prayed that plaintiff have foreclosure of its lien. The pleadings did not question the fact that the property was Wheeler's homestead at the time the deed of trust was executed, but the plaintiff alleged that it advanced the money for which the note deed on was given to take up a mechanic's lien on the property. Mitchell replied to this by alleging that the mechanic's lien contract was not a bona fide contract, and was entered into after the principal part of the improvements on the place were finished; to which plaintiff answered that the mechanic's lien contract was represented to it by Wheeler and wife to be valid and bona fide, and that the improvements were made thereunder, which representation plaintiff believed, having no notice to the contrary, all of which estopped Wheeler and wife from denying the validity of the lien, and that Mitchell, buying from them with notice of these facts, is also estopped. The case was tried by a jury, and resulted in a verdict and judgment for appellee for the amount of its debt against both Wheeler and Mitchell, with foreclosure of the lien upon the premises as against all defendants. From this judgment Mitchell alone appeals. There is no dispute as to the default in the payments or the amount due on the note; the amount due being the amount of the verdict, $788.54, with 6 per cent. interest from September 1, 1896, and 10 per cent. attorney's fees.

The first and fifth assignments of error call in question the action of the court in submitting to the jury the issue of appellant's personal liability, and in overruling his motion for a new trial on the ground of the insufficiency of the testimony. It was shown that W. D. Wheeler purchased the lot in question from one Atterbury, agreeing to give therefor $400. One H. G. Taylor erected the improvements on said lot for Wheeler for an agreed consideration of $1,000,—$200 in cash, and $800 by note secured by a mechanic's lien, or an attempted mechanic's lien; both the note and the contract providing for the lien being signed by Wheeler and wife. Taylor executed a formal assignment of this note and contract lien to the appellee, reciting therein the receipt from appellee of the full amount specified in the note and lien by Wheeler and wife; the note and trust deed herein sued upon having been executed by Wheeler and wife in order to take up or extend their note and contract with Taylor. W. D. Wheeler testified: "The lot was not improved when I purchased it, but has been improved by myself since purchasing it. These improvements were made by contract, —a written contract with H. G. Taylor. We had a verbal agreement or understanding before the improvements were commenced, but the contract was not written or signed until after the building was under construction, and some work done on it. The buildings were about one-third completed when the contract was signed. H. G. Taylor built the house, and was the only contractor. There was but one contract, and that was carried out. The building was nearing completion when this loan was negotiated. This contract [with Taylor] was entered into by me so that I could get a loan on my homestead. I intended, at the time this instrument was executed, to get some loan company to purchase the obligation and lien therein contained from H. G. Taylor. I knew that I could not get a loan on my homestead, except to take up a mechanic's lien. The check came in Taylor's name. The money was paid out to the different claimants for labor and material, as said claims were presented. H. G. Taylor transferred this mechanic's lien to the plaintiff at my instance." Mrs. Wheeler testified: "These improvements were made by written contract with H. G. Taylor. He built the house, and was the only contractor. We made but one contract, and that was with Mr. Taylor, and this contract was carried out according to its terms. The building was, however, commenced before the contract was signed by me. I signed the contract with Mr. Taylor, but do not remember the date. This contract was entered into by us so that we could get a loan on our homestead. We intended at the time this instrument was executed to get some loan company to purchase the obligation and lien therein contained from H. G. Taylor. We both signed the written application to the plaintiff for this loan, and the same was made in good faith, and we requested the association to purchase said indebtedness from H. G. Taylor. My husband, W. D. Wheeler, did nothing in regard to said loan that was contrary to my wishes. He was fully authorized to do all that he did in the matter, and I have ratified all that he did." There were two depositions of defendant Wheeler introduced in evidence, one taken on October 11 and the other on October 18, 1897, taken before different notaries, but in answer to the same interrogatories. In the first he testified: ...