Elliott Lumber Co. v. Mitchell

• Decision Date: 25 March 1922
• Docket Number: (No. 10115.)
• Citation: Elliott Lumber Co. v. Mitchell, 241 S.W. 221 (Tex. App. 1922)
• Parties: ELLIOTT LUMBER CO. v. MITCHELL.
• Court: Texas Court of Appeals

241 S.W. 221

ELLIOTT LUMBER CO. v. MITCHELL.

(No. 10115.)

Court of Civil Appeals of Texas. Fort Worth.

March 25, 1922.

Rehearing Denied May 6, 1922.

Appeal from District Court, Eastland County; Geo. L. Davenport, Judge.

Suit by the Elliott Lumber Company against G. B. Mitchell, in which the Clem Lumber Company and Mrs. L. E. Mitchell, wife of the defendant, intervened. Judgment for the Clem Lumber Company against the defendant G. B. Mitchell, and that plaintiff have judgment against G. B. Mitchell for all sums paid by it in favor of the intervener Clem Lumber Company, and that defendants Mitchell and interveners take nothing under their affirmative pleas in the nature of cross-actions, and that the prayers of the plaintiff and the Clem Lumber Company for a foreclosure of their materialman's lien be denied, and plaintiff appeals. Judgment reversed and rendered in part, reversed and remanded in part, and in part affirmed.

Scott, Brelsford, Funderburk & Ferrell, of Eastland, for appellant.

Chas. C. Robey, J. R. Stubblefield, and Sayles & Sayles, all of Eastland, for appellee.

CONNER, C. J.

The Elliott Lumber Company, a corporation, instituted this suit against G. B. Mitchell upon a verified account for materials and supplies, aggregating $8,060.25, furnished in the construction of an apartment house by the defendant Mitchell in the city of Eastland. It was alleged that the material and supplies specified in the account were furnished in accordance with the terms of an agreement made by the plaintiff and defendant prior to the 28th day of January, 1920, the date upon which the first material was delivered. It was further alleged that the plaintiff had fixed a materialman's lien on the lots upon which the apartment house was constructed, and a foreclosure of the lien was prayed for.

The defendant, Mitchell, answered by a general demurrer, a general denial, and further pleaded specially that the property upon which the defendant sought to foreclose its materialman's lien was a homestead, and therefore not subject to the lien. The defendant further specially pleaded that the plaintiff had contracted to furnish all of the material necessary for the construction of the apartment house, but had breached the contract in this respect, and hence that he had been unable to complete the house with the result that it had deteriorated and thus damaged the defendant in a specified amount, which he sought to recover over against the plaintiff by way of a cross-action.

The Clem Lumber Company, a corporation, and Mrs. L. E. Mitchell, wife of defendant G. B. Mitchell, by separate pleas, each intervened in the suit. The Clem Lumber Company alleged that it had sold and delivered to the defendant G. B. Mitchell certain materials and supplies specified in a verified account attached to the plea, amounting to $1,780.15, which had been used in the construction of said apartment house, and to secure which it sought to foreclose a materialman's lien on the same property. This intervener also specially alleged that the defendant Elliott Lumber Company had agreed to pay said account, and by virtue thereof the Clem Lumber Company prayed for the recovery of a judgment against the plaintiff.

Mrs. Mitchell in her plea of intervention interposed the homestead character of the premises, as alleged by the defendant G. B. Mitchell.

The case was submitted to a jury on special issues, and upon the findings the court entered a judgment in favor of the plaintiff, Elliott Lumber Company, against G. B. Mitchell on the verified account for $8,060.25, with interest thereon from the 1st day of January, 1921, at 6 per cent. per annum; and in favor of the Clem Lumber Company against the defendant, G. B. Mitchell, and the plaintiff, Elliott Lumber Company, jointly and severally for the sum of $1,780.15, with interest thereon from January 1, 1921, at 6 per cent. per annum. The judgment recited that as between the plaintiff and the defendant, G. B. Mitchell, and the Clem Lumber Company that Mitchell was primarily liable for the debt to the Clem Lumber Company, and that the plaintiff, Elliott Lumber Company, should have judgment against G. B. Mitchell for all sums of money paid by it under the judgment in favor of the intervener Clem Lumber Company. It was further adjudged that the defendant Mitchell and interveners take nothing under their affirmative pleas in the nature of cross-actions, and that the prayers of the plaintiff and the Clem Lumber Company for a foreclosure of their materialman's lien be denied. From the judgment so rendered, the plaintiff Elliott Lumber Company has duly prosecuted this appeal.

There was no denial of the verified accounts presented by the Elliott Lumber Company and the intervener Clem Lumber Company, and that these several accounts are just and unpaid is not questioned. The controlling question presented on this appeal is whether the issue of homestead vel non was properly determined by the jury and court below. Upon the conclusion of the evidence on the trial the plaintiff, Elliott Lumber Company, requested the court to give the jury a peremptory instruction to the effect that the property in question was not a homestead within the meaning of the law so as to exempt it from the operation of the materialman's lien, severally asserted by the plaintiff and the intervener Clem Lumber Company, and we think this charge should have been given. As shown by the undisputed proof, the material specified in the plaintiff's verified account was delivered in pursuance of an oral agreement made on or prior to the 28th day of January, 1920, and the substance of the pleas of the homestead character of the property was that such was its character "at the time of the filing of the plaintiff's verified account in the office of the county clerk of Eastland county, Tex., and long prior thereto," etc. The undisputed proof is to the effect that at the time of the making of the contract by the Elliott Lumber Company to furnish the material it did furnish the defendant, Mitchell, and his wife, L. E. Mitchell, were in the actual possession and occupancy of a homestead in the city of San Antonio. The legal title to the San Antonio property was in the name of the wife, but this fact is immaterial, for a homestead may be established upon the separate property of the wife, and, when so established, is protected by the Constitution from a forced sale. See Ball, Hutchings & Co. v. Lowell, 56 Tex. 579; Freeman v. Hamblin, 1 Tex. Civ. App. 157, 21 S. W. 1019. It is true there was testimony in behalf of the defendant and Mrs. Mitchell that prior to January. 28, 1920, there had been negotiations for the sale of the San Antonio property with the view of making their home in Eastland, but it is undisputed that the negotiations were not consummated by the execution and delivery of a conveyance or of any instrument in writing prior to the 16th day of March, 1920, and thereafter until some time in July, 1920, the San Antonio homestead was still occupied by the wife and some of the younger...