Bunton v. Palm

• Decision Date: 19 June 1888
• Court: Texas Supreme Court
• Parties: BUNTON <I>v.</I> PALM.

Page 182

9 S.W. 182

BUNTONv.

PALM.

Supreme Court of Texas.

June 19, 1888.

Commissioners' decision. Appeal from district court, Travis county.

Appellant, Sarah A. Bunton, joined by her husband, Desha Bunton, on February 1, 1878, sold and conveyed the four acres of land in controversy to John H. Wells. The land is situated in Travis county, on the west side of the Colorado river, and was sold on a credit, but the deed acknowledged the receipt of the purchase money in full. In payment of the land, Wells executed his promissory note for the sum of $220.50, payable at five years, with E. W. Shands and James V Bergen as sureties; the note reciting that when recorded it should become a lien on the land that day sold to Wells. Wells had a wife and children, and at the time of the purchase resided in the city of Austin, upon rented property; had no land or homestead of his own, and bought this land with a view of establishing a homestead upon it. The land was unimproved, and Wells, on the day he bought it, executed his note for $500, payable to the order of Z. H. Eyre, two years after date. This note recites that it "is given in payment for work and material used and to be used on my homestead in Live Oak Grove, and is hereby declared to be a mechanic's lien on the lots and improvements to be erected thereon, as provided in the foregoing contract." The contract referred to is executed by Z. H. Eyre and J. H. Wells only, and provides that Eyre shall have a mechanic's lien upon the land in controversy, to secure the payment of $500, in consideration of his agreeing to furnish labor and material for the construction of certain improvements therein described on said land. The contract was properly acknowledged on February 4, and filed for record in the county clerk's office of Travis county on March 20, 1878. Eyre transferred the note and contract by written indorsement to the appellee, Swante Palm, on 5th of February, 1878; not having complied with the contract on his part. It appears that one James V. Bergen, who was a partner of E. W. Shands, the firm being E. W. Shands & Co., was indebted to the appellee in the sum of $500, and that he had notified Palm shortly before the date of the transfer of the note that he wished to pay off the indebtedness. Palm, not wishing to collect the money, requested Bergen to lend it for him. Bergen thereupon represented to Palm that the note and contract above described would be a safe investment; and Palm, acting upon the representation of Bergen as to the validity of the lien of the contract, took a transfer of the same in consideration of the $500 that Bergen was indebted to him. Palm had no transaction with Eyre in person, but the negotiation was entirely with Bergen, who seems to have acted in this matter as the agent of Palm and of Eyre, and also of Wells; he having deposited the money with E. W. Shands & Co. for the use of Wells, who expended the most of it for material used in improving the place. It appears probable from the evidence that it was never contemplated that Eyre should furnish labor or material to be used in the erection of a homestead for Wells, but it is most likely that the note and contract were executed for the purpose of being negotiated to raise money to enable Wells to make his contemplated improvements on the land for a home for himself and family. Palm knew nothing of this arrangement, but believed the contract evidenced a valid mechanic's lien, as it purports to do. In the summer of 1878, Mrs. Wells died in the city of Austin, without ever having resided on the land in question. Shortly after her death, Wells, with his children, moved into the house that he had built upon this land with the money procured from Palm, and lived there a few months. He then sold the land to Virginia Shands, wife of E. W. Shands, through his agent, James V. Bergen. Soon after this, he moved out of the state, and has been a resident of Arkansas ever since. The deed from Wells, through his attorney, Bergen, to Mrs. Shands, is dated January 29, 1879. Subsequently to this time, the land was regularly sold under execution against E. W. Shands, and the appellant, through mesne conveyances down to herself, holds this title. Appellant claims that her lien to the land is superior to that of appellee by reason of the sale of the land by herself and husband to Wells, and the non-payment of the note executed for the purchase money; and also claims that as the assignee of Wells she is entitled to plead his homestead rights to the land, if any he had, in bar of Palm's claim of foreclosure. The district court established appellee's lien as superior to all claims of appellant, and decreed that the land be sold, and that the proceeds arising from the sale be applied first to the discharge of appellee's debt, and that the balance be paid over to appellant. No conclusions of facts or law were filed, and the case is before this court for revision on the entire record.

Sneed, Pendexter & Burleson, for appellant. John Dowell, L. A. Posey, and Swain & Childress, for appellee.

MALTBIE, J., (after stating the facts as above.)

It never having been intended that the contract between Eyre and Wells should be performed, but that it...