Davis v. Cicero-Smith Lumber Co.
| Decision Date | 02 November 1932 |
| Docket Number | No. 3892.,3892. |
| Citation | 55 S.W.2d 130 |
| Parties | DAVIS et al. v. CICERO-SMITH LUMBER CO. et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Lubbock County; Clark M. Mullican, Judge.
Suit by the Cicero-Smith Lumber Company and others against Pearle Davis and others, in which C. E. Maedgen and the Lubbock National Bank intervened. From adverse judgments, the defendants appeal.
Affirmed in part, and reversed in part, and remanded.
Vickers & Campbell, of Lubbock, for appellants.
Rob't A. Sowder and Bean & Klett, all of Lubbock, for appellees.
The Cicero-Smith Lumber Company, a corporation, instituted this suit against Effie L. Davis and her husband, T. D. Davis, their single daughters, Pearle and Blanche, and C. E. Maedgen, and the Lubbock National Bank, a banking corporation, to recover $8,000, consisting of a balance of the principal, with interest and attorney's fees, evidenced by a note, and to foreclose its lien securing the payment thereof on lots 13 to 24, inclusive, in block 2 of the McCrummen Second addition to the town of Lubbock.
The Davises answered by numerous exceptions, general denial, alleged that Effie L. Davis and T. D. Davis were husband and wife on all the dates involved in this litigation; that the lots on which a lien was asserted were the community property of Effie L. and T. D. Davis, and constituted their homestead and was occupied as such, although the legal title had been placed in trust in the name of Pearle Davis; that the Cicero-Smith Lumber Company was advised and had full knowledge of all the facts and circumstances, by reason of which the lien alleged by said lumber company was null and void.
Pearle Davis answered that she executed the note and lien as an accommodation to the lumber company at the direction of her mother, Effie L. Davis, who conducted all the negotiations pertaining to the building and the lien asserted by said company; that she (Pearle) was not the owner of the property, had no interest therein, and received no consideration for the debt, although the legal title had been placed in her.
In answer to the contention of the Davises, the lumber company pleaded certain facts which it alleged constituted an estoppel.
C. E. Maedgen and the Lubbock National Bank answered by plea of intervention, alleged that the bank acquired and was the owner in due course of certain notes executed by Pearle, Effie L., and T. D. Davis, as part of the purchase price of the lots in controversy and that said notes were secured by a vendor's lien retained in the deed from the owner, Eva Knight, conveying the lots to Pearle Davis; that, partial payments having been made, certain of the lots were released, but the balance due the bank on the notes was the sum of $1,202, with interest and attorney's fees; and that its lien against lots 13 to 17, inclusive, securing the payment thereof, was valid and subsisting, and prayed for a foreclosure thereof against the lumber company and all of the defendants.
In reply to the intervention of the bank, the Davises set up certain facts upon which they based a plea of usury and claimed that they were entitled to a reduction on the amount claimed by the bank because of such alleged usury.
The pleadings consist of some forty-eight pages of the transcript, but we deem the above statement sufficient for the purpose of reviewing the questions presented.
The case was tried to a jury, but the judge directed a verdict for the lumber company and also for the bank, and entered judgment for each of said corporations granting the relief substantially as prayed for, and the Davises have appealed.
The appellants assail as error the action of the trial court in directing a verdict in favor of the Cicero-Smith Lumber Company, because they contend if the testimony does not conclusively show that the property in controversy was the homestead of Effie L. and T. D. Davis, husband and wife, it does present an issue of fact relative thereto, and, as no instrument was executed by the husband and wife as provided by law for fixing a lien against the homestead, the lien asserted by the lumber company was void and unenforceable.
The record indicates that Effie L. and T. D. Davis purchased the lots, 13 to 24, inclusive, involved in this controversy, from Eva Knight on December 31, 1923, for a consideration of $1,920 paid and a balance of $4,080, evidenced by four notes of $1,020 each; that the lots were conveyed to Pearle Davis and the notes for the deferred payments were executed by Pearle and her mother, Mrs. Effie L. Davis; that at the time of the purchase there was located on lots 13 and 14 an eight-room house, together with some other improvements, into which Effie L. and T. D. Davis moved with their family; that...
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