Burton v. Schwartz

• Decision Date: 07 February 1931
• Docket Number: No. 12425.,12425.
• Parties: BURTON v. SCHWARTZ et al.
• Court: Texas Court of Appeals

36 S.W.2d 1066

BURTON v. SCHWARTZ et al.

No. 12425.

Court of Civil Appeals of Texas. Fort Worth.

February 7, 1931.

Rehearing Denied March 28, 1931.

Appeal from District Court, Tarrant County; James E. Mercer, Judge.

Suit by Willard Burton against Joe Schwartz and others. From the judgment, plaintiff appeals.

Affirmed.

Marvin H. Brown & Son, of Fort Worth, for appellant.

Slay & Simon, of Fort Worth, for appellees.

BUCK, J.

This suit was filed by Willard Burton against Joe Schwartz and his five minor children, Thelma, David, Irving, Estelle, and Eleanor Schwartz. The suit was for the purpose of foreclosing a claimed lien on a piece of property located at 1700 Sixth avenue and occupied since some time in 1920 by the Schwartz family as a homestead. Plaintiff also sued J. C. Buchanan as an indorser of some $11,000 worth of notes. Mrs. Schwartz died prior to the filing of the suit, and her husband, Joe Schwartz, and his five minor children, through a guardian ad litem, answered, as also did J. C. Buchanan. The controversy in the court below was as to whether the lien had been fixed on the homestead prior to the beginning of the building as provided by the Constitution of the State of Texas and of the statutes pertaining thereto.

After the completion of the evidence, the trial court instructed a verdict for the defendants as against the claim of Willard Burton, and instructed a verdict for Willard Burton against J. C. Buchanan. The court entered judgment for the Schwartz family as against the claim of Willard Burton and for Willard Burton against J. C. Buchanan. From this judgment the plaintiff below, Willard Burton, has appealed.

Opinion.

The evidence of Willard Burton tends to show that the notes in question were executed by Joe Schwartz and his wife, Fannie Schwartz. The testimony shows that Mr. Buchanan started building the house without the execution by Schwartz and wife of any lien or written contract. The work was begun some time in January, 1920, and it was not until some time in June, 1920, that a deed was executed by Schwartz and wife to Buchanan, and a reconveyance was executed by Buchanan to Mr. and Mrs. Schwartz, reserving a lien to the amount of the notes.

The testimony further showed that in 1924 Joe Schwartz was adjudged a bankrupt, and that he included in his liabilities the amount of these notes, and that he was relieved from the payment of these notes.

Mr. Burton, testifying for himself, said that he was president of the Burton-Lingo Lumber Company and was president of that company in June, 1920. That he had known Mr. Buchanan for more than thirty years and knew that he was a contractor in June, 1920. That he had many transactions with Mr. Buchanan and had sold him much material and lumber. That it was his remembrance that "we had purchased these $8,000 worth of notes." By "we" he meant the Burton-Lingo Lumber Company. That he could not say positively at the time of testifying whether the Burton-Lingo Lumber Company was the owner of the notes at this time or not. That he could not say whether their money, or the money of a widow, living at Cleburne, a Mrs. Bentall, had purchased the notes. That he was inclined to think that it was his money that went into the notes, but that he could not swear whether it was his money or the money of Burton-Lingo Company. That at the time of the purchase of the notes, Mr. Buchanan owed the Burton-Lingo Lumber Company some money. That Mr. Buchanan had furnished all the material for Schwartz and had gotten nothing for it, and that he thought Buchanan owed "us" for it at the time; that he could not say whether the money that he paid for the notes, or the money paid belonging to Mrs. Bentall, went to the Burton-Lingo Lumber Company in payment of material that Mr. Buchanan had purchased from the Burton-Lingo Lumber Company or not. Mr. Burton was asked whether or not the books of Burton-Lingo Lumber Company would reflect that this money actually went into the assets of the company. He answered: "I would imagine that it went into the assets of Burton-Lingo Lumber Company in payment of material that Mr. Buchanan had purchased from the Burton-Lingo Lumber Company, but I could not swear positively about that, but it is my recollection that is what happened." He was asked whether or not the Burton-Lingo Lumber Company purchased these notes for the purpose of paying the debt that Mr. Buchanan owed it. He answered, "It was done to accommodate Mr. Buchanan." He further testified that the notes not being paid at maturity, he, for Burton-Lingo Lumber Company, paid Mrs. Bentall the amount of her money that had gone into the notes.

The evidence further showed that Joe Schwartz expected to get a loan from his uncle, D. H. Keene, who, prior to this time, had moved from Fort Worth to Los Angeles. That after the building had progressed considerably, he learned that Mr. Ross, of the firm of Ross, Ross & Alexander, leading attorneys, had declined to pass the title for Mr. Keene and that Mr. Keene had refused to loan his nephew the money needed. He further testified that he did not know whether Burton-Lingo Lumber Company sold the notes to a Mr. Locke; that he could not say whether "we" owned these notes at the time the first note became due or not.

Mr. J. C. Buchanan testified that he did not know whether he ever had built any other house to be used as a homestead or not prior to this time; that they had been working on the house some time and the work was practically done when the deed from Schwartz and wife to him and the deed back from him to Schwartz and wife was executed, and put on record. That they began the work of erecting the building without any written contract and nothing was given but a verbal authority from Mr. Schwartz. That he remembered at the time of testifying that the record title was taken to Mr. Ross, Mr. Keen's attorney, and Ross told John O'Reilly, Mr. Keene's bookkeeper, that Mr. Keene could not safely make the loan on this property. That at the time the deed was made by Schwartz and wife, he (Buchanan) did not pay any consideration to Schwartz and wife; that when he began the erection of the building he placed Mr. E. S. Newcome in charge of it; that some time in June, 1920, after he had gone to El Paso to live, Mr. Newcome wrote him and he came back to Fort Worth and learned that Mr. Ross had turned down the title and also Samuels & Brown, attorneys; and that he went to his attorney, who advised him and Mr. Schwartz to execute these deeds, which was done. The deeds were antedated to January 3, 1920.

Mr. E. C. Newcome testified that he had some business relations with Buchanan in 1921-22, and that he severed his connection at the end of 1922. That he had known Mr. Schwartz since the early part of January, 1920. That he wrote for Schwartz on January 3, 1920, this authorization:

"We hereby authorize you to erect our residence as above on all cost price, us paying all bills."

That evidently this order was drawn up and "back dated," because "I knew that we had some material on the ground, and some excavating work had been done, when the contract—when the plans were changed to a two story house." That when he learned that Mr. Schwartz was unable to make further payments on the residence, he went to Mr. Schwartz and talked with him about the condition of the building, and Schwartz told him that his uncle had promised to loan him some money, and that he told Schwartz they could not go any further with the building without his making some arrangements, and that Mr. Schwartz made some efforts and then reported back to witness that he could not get the money from his uncle. That Mr. Schwartz told him that Mr. Keene's attorney had told him that money could not be loaned on the property and also told him the reason why. That he told him the reason why Mr. Keene could not make the loan on the property was because it was a homestead.

Joe Schwartz testified that he moved into the house some time in the latter part of June, or the first of July, 1920; that the building was almost finished then. He testified further:

"They had a little finishing up work to do, and they were working on it while we were in there. My wife and I would usually move some little things over there every time that we would go to look at the building. They built a servant's house and a garage on the premises first, and those...