Chamberlain v. Dollar Savings Bank of New York

• Decision Date: 26 January 1970
• Docket Number: No. 8014,8014
• Citation: 451 S.W.2d 518
• Parties: M. K. CHAMBERLAIN, dba M. K. Chamberlain Brick Co., Appellant, v. DOLLAR SAVINGS BANK OF NEW YORK, Appellee.
• Court: Texas Court of Appeals

Page 518

451 S.W.2d 518

M. K. CHAMBERLAIN, dba M. K. Chamberlain Brick Co.Appellant, v.DOLLAR SAVINGS BANK OF NEW YORK, Appellee.

No. 8014.

Court of Civil Appeals of Texas Amarillo.

Jan. 26, 1970.

Rehearing Denied March 2, 1970.

Arthur J. Lamb, Amarillo, for appellant.

Sam Houston Clinton, Jr., Austin, amicus curiae on motion for rehearing.

Day, Owen & Lyle and Gene V. Owen, Plainview, for appellee.

NORTHCUTT, Justice.

This is a suit by appellant, Chamberlain, for debt based upon a contract with Powers Homes, Inc.(owner of the subject property at the time of construction) and for foreclosure of a constitutional lien and of a statutory mechanic's and materialman's lien against the subject property.At the time the suit was filed, title to said property was in the defendants, Boyd L. Truax and wife, Helen Jeanette Truax.Subsequently, Dollar Savings Bank of New York succeeded to the interest of the defendants Truax and is appellee herein.Defendant, Powers Homes, Inc., defaulted and judgment was taken by appellant against Powers Homes, Inc., for the sum of $1,169 .29 plus cost without waiving appellant's lien or right to foreclose.Upon a trial of the case before the court without a jury, judgment was entered that appellant take nothing by his suit against Dollar Savings Bank of New York and cancelling, annulling and removing appellant's lien from the subject property.From that judgment appellant perfected this appeal.

The evidence reflects that on December 3, 1965, Powers Homes, Inc., executed a deed of trust recorded the same day to Lumbermen's Investment Corporation on Lot 14, Block 10, Edgemere Addition, UnitNo. 4 to the town of Plainview, Hale County, Texas, to secure an indebtedness of $13,950.00.The deed of trust provided 'grantors expressly represent that this deed of trust and the note hereby secured are given for the following purpose, to wit: to secure the advances of certain sums of money as set out in that certain Constructive Loan Commitment Agreement executed by and between Powers Homes, Inc., Phil Berg, and Lumbermen's Investment Corporation bearing even date herewith.'The instrument was in connection with an interim financing arrangement under which Lumbermen's Investment Corporation agreed to advance funds to Powers Homes, Inc., to pay for the lot and the cost of constructing improvements thereon.The lot was conveyed to Powers Homes, Inc., by deed dated November 29, 1965 and recorded on December 3, 1965.Such funds were advanced to Powers Homes, Inc., in installments between December of 1965 and June of 1966.On or about April 15, 1966, plaintiff furnished brick that was used to brick veneer the house together with a fireplace damper, firebrick and angle iron in the construction of the fireplace and chimney in said house.At the time the brick was furnished the house was partially completed on the lot in question, and the house was in 'dry' with walls, roof, doors, windows installed.

Power Homes, Inc., having defaulted on its note to Lumbermen's Investment Corporation, the latter caused a trustee's sale to be held on the 6th day of December, 1966.At this sale, Lumbermen's Investment Corporation bought said property and then on December 9, 1966, deeded the property to Boyd L. Truax and wife, Helen Jeanette Truax.At the time of the trial, Dollar Savings Bank of the City of New York, appellee herein, was the record owner of the lot in question.

The sole issue to be determined herein is whether the original lien held by Lumbermen's Investment Corporation dated and recorded December 3, 1965 was superior to the Chamberlain lien.We must assume from this record that Powers Homes, Inc., was the builder of the house here in question since it is undisputed that there was no general contract between Powers Homes, Inc., the record owner of the property in question at the time the deed of trust was given, and a contractor.The trial judge held in this case that the deed of trust lien from ...