Felthouse Lumber Co. v. Tijerina

• Decision Date: 19 August 1942
• Docket Number: No. 11163.,11163.
• Citation: 164 S.W.2d 732
• Parties: FELTHOUSE LUMBER CO. et al. v. TIJERINA et al.
• Court: Texas Court of Appeals

164 S.W.2d 732

FELTHOUSE LUMBER CO. et al. v. TIJERINA et al.

No. 11163.

Court of Civil Appeals of Texas. San Antonio.

August 19, 1942.

Rehearing Denied October 7, 1942.

Appeal from District Court, Duval County; L. Broeter, Judge.

Action by Mrs. Raul Tijerina and husband against the Felthouse Lumber Company and others, in trespass to try title and to enjoin defendants from foreclosing under a deed of trust securing a mechanic's lien note. From a judgment for plaintiff, defendants appeal.

Reversed and remanded.

Park Street and W. W. Fowlkes, both of San Antonio, for appellants.

Perkins & Floyd, of Alice, for appellees.

SMITH, Chief Justice.

The parties to this appeal are Felthouse Lumber Company and others, appellants, against Mrs. Raul Tijerina and husband, appellees. The suit was an action in trespass to try title, and to enjoin appellants from foreclosing under a deed of trust to secure the payment of a mechanic's lien note. The property involved consists of two lots in the City of Benavides, Duval County.

The cause was tried to the court without a jury and judgment was rendered granting appellee title to the property and perpetually restraining foreclosure of the mechanic's lien. The facts are somewhat complicated, but the trial court made elaborate findings of fact to which we must look for a statement of the case, since neither party has questioned any of the findings of fact by specific assignment, proposition or point. Appellant's only assignment of error or point is that "the court erred in rendering judgment to the effect that the Felthouse Lumber Company did not have any lien whatsoever." In the absence of a specific attack on the findings of fact, they must be given full effect, and the maximum duty resting upon this Court is to determine whether the judgment is supported by the findings.

The facts pertinent to this appeal can be briefly summarized from the findings of the trial judge. Francisco Lozano and wife owned the property involved in this action, and were using it as their homestead, subject to a then valid vendor's lien and a materialman's lien dated January 28, 1937, and August 3, 1937, respectively. Both of these liens were duly recorded by F. Vallo Puig, the holder of the obligations thereby secured. In order to erect a garage upon the land, Lozano and wife, on March 1, 1939, executed and delivered to Guadalupe Canales, as contractor, their mechanic's lien note and contract which was filed for record on September 2, 1939. This is the lien involved in this appeal.

The mechanic's lien note held by Guadalupe Canales was assigned to Victor Garcia and associates by an instrument in writing signed by the Hebbronville Lumber Company, acting by and through its president, Guadalupe Canales, and the assignment was recorded November 7, 1939.

Thereafter, Guadalupe Canales and the Hebbronville Lumber Company assigned to appellant Felthouse Lumber Company, as collateral, the mechanic's lien note, contract and deed of trust originally executed by Lozano and wife to Canales. The note bore the endorsement, in blank, of Guadalupe Canales. Four months later, Guadalupe Canales assigned to appellant the same note, contract and deed of trust. The court found that no consideration was paid by Felthouse Lumber Company for this assignment.

On November 27, 1940, Victor Garcia and associates, joined by Canales and the Hebbronville Lumber Company, quitclaimed to appellant Felthouse Lumber Company their interest in the mechanic's lien note, contract and deed of trust. Appellant, however, accepted the assignment upon the condition that if the title thereto was good, appellant would give the Hebbronville Lumber Company a credit in the amount of the note upon a pre-existing indebtedness. Such credit was never given.

Prior to October, 1940, Felthouse Lumber Company instituted proceedings under the deed...