Freed v. Bozman

• Decision Date: 06 June 1957
• Docket Number: No. 6971,6971
• Citation: 304 S.W.2d 235
• Parties: J. D. FREED, Appellant, v. J. D. BOZMAN and Noble Crawford, Appellees.
• Court: Texas Court of Appeals

Page 235

304 S.W.2d 235

J. D. FREED, Appellant, v.J. D. BOZMAN and Noble Crawford, Appellees.

No. 6971.

Court of Civil Appeals of Texas, Texarkana.

June 6, 1957.

Rehearing Denied July 4, 1957.

Richard Owens, Fort Worth, for appellant.

John M. Smith, Longview, for appellees.

FANNING, Justice.

J. D. Freed, as plaintiff, sought an injunction restraining J. D. Bozman, as owner of a judgment upon a materialman's and mechanic's lien, and Noble Crawford, as sheriff, from executing a certain order of sale on certain land and improvements owned by plaintiff.Trial was to a jury.In response to special issues submitted the jury found that certain improvements placed on the land by Bozman consisting of a motion picture screen, and frame, ticket booth and neon sign, and speaker poles (all of which were part of a drive-in movie theater) had not become so permanently attached to the land as not to be removable therefrom without material damage to such land.The trial court dissolved the temporary injunction previously issued in the cause and decreed that an order of sale issue in Bozman's favor on the motion picture screen and frame, the ticket booth and neon sign, and the speaker poles in question, located on an 8-acre tract of land belonging to plaintiff.Plaintiff, J. D. Freed, has appealed from this judgment.

Lela C. Clements et al. conveyed the 8-acre tract of land in question to Ferguson and wife, by deed dated April 17, 1953(when there was no drive-in movie theater on said land), wherein a vendor's lien note in the amount of $4,000 was created; on the same date the Fergusons executed a deed of trust to R. M. Wood, Trustee, to secure said debt; Ferguson executed a deed, dated July 17, 1953, conveying a half interest in the 8 acres to Harrell; Ferguson and wife executed a deed, dated September 3, 1953, conveying a half interest in the 8 acres to Stone, with Stone assuming the $4,000 vendor's lien note; Stone executed a quitclaim deed to Kirkendall, dated March 2, 1954; Kirkendall executed a quitclaim deed, dated March 7, 1954, to said Harrell (Charles Richard Harrell) quitclaiming the said 8 acres; on June 17, 1954, said Harrell executed a deed to Prince, as trustee for the creditors of said Harrell, to the said 8 acres; R. M. Wood, as trustee, on March 6, 1956, executed a trustee's deed to Lela C. Clements and Douglas B. Clements, conveying the 8 acres, foreclosing the deed of trust and vendor's liens originally given in the original amount of $4,000; Lela C. Clements and Douglas Clements, on March 23, 1956, executed a warranty deed conveying the 8 acres in question to J. S. Freed.

J. D. Bozman on December 21, 1955, filed suit against Prince, assignee of Harrell, alleging that between the dates of August 6, 1953, and October 1953, he furnished materials and labor to C. Richard Harrell as owner of Glade Drive-in Theatre, in the amount of $2,800 (used in the construction of he drive-in movie theater located on the 8 acres) and that his mechanic's and materialman's lien was filed on January 18, 1954.This claim was reduced to a judgment in cause No. 28,213-B, in the District Court of Gregg County, Texas, wherein judgment was rendered for Bozman against Prince, as assignee for Harrell, establishing and foreclosing Bozman's liens in the amount of $2,800, which judgment was not appealed from, and became a final judgment.

This case was tried by the trial court on the theory that the deed of trust sale by the trustee to Clements cut off any rights or lien which Bozman might have had in the 8 acres of land, but that if the improvements which Bozman had placed on the land in the construction of the drive-in movie theater thereon, consisting mainly of a movie screen and platform, ticket booth and neon sign, and speaker poles, could be removed without material damage to the land, then that Bozman should have his order of sale on such improvements, and that such improvements be allowed to be removed by the successful bidder at such sale.

The trial court clearly recognized that the vendor's lien and deed of trust foreclosure thereof were prior to any rights or liens which Bozman might have had in the 8 acres of land itself, and judgment of the trial court only allows an order of sale upon the specific items mentioned, to-wit the movie picture screen and platform, the ticket booth and neon sign, and the speaker poles.

Appellant, among other things, contends that as a matter of law the motion picture screen and platform, ticket booth and neon sign and speaker poles, had become so permanently attached to thr realty so as not to be removable without material damage to the land and the improvements themselves, that the findings of the jury, were against the undisputed evidence, and that the issues submitted were improper.By other points appellant attacks the sufficiency of the affidavit for the mechanic's lien and raises other matters as well.

Article 16, Sec. 37, Constitution of Texas, Vernon's Ann.St., provides:

'Mechanics, artisans and material men, of every class, shall have a lien upon the buildings and articles made or repaired by them for the value of their labor done thereon, or material furnished therefor; and the Legislature shall provide by law for the speedy and efficient enforcement of said liens.'

Article 5452, Vernon's Ann.Civ.St., provides in part as follows:

'Any person or firm, lumber dealer or corporation, artisan, laborer, mechanic or sub-contractor who may labor or furnish material, machinery, fixtures or tools; (a) to erect or repair any house, building or improvement whatever; * * * upon complying with the provisions of this chapter shall have a lien on such house, building, fixtures, improvements, * * * and shall have a lien on the lot or lots of land necessarily connected therewith * * * to secure payment for the labor done, lumber, material, machinery or fixtures and tools furnished for construction or repair.'

Article 5459, V.A.C.S., provides:

'The lien herein provided for shall attach to the house, building, improvements or railroad for which they were furnished or the work was done, in preference to any prior lien or encumbrance or mortgage upon the land upon which the houses, buildings or improvements, or railroad have been put, or labor performed, and the person enforcing the same may have such house building or improvement, or any piece of the railroad property, sold separately; provided, any lien, encumbrance or mortgage on the land or improvement at the time of the inception of the lien herein provided for shall not be affected thereby, and holders of such liens need not be made parties in suits to foreclose lien herein provided for.'

Article 5471, V.A.C.S., provides:

'When the house, building, improvement, or any piece of the railroad's property is sold separately, the officer making the sale shall place the purchaser in possession thereof; and such purchaser shall have the right to remove the same within a reasonable time from the date of purchase.'

We think Vernon in its Volume 3 of the Texas State Constitution, on page 288, in its subdivison 32 (under Art. 16, Sec. 37, Tex.Const.) entitled 'Removal of Materials,' has well stated the correct construction to be given Articles 5452, 5459, and 5471, supra, and we quote from same as follows:

'Under Vernon'sAnn.Civ.St., arts. 5452, 5459, and 5471, as against the rights of the lienholder, the improvements do not become a part of the real estate, but are treated as if they had been made under a contract for removal, because the statute provides that foreclosure may be had upon the house alone, and that the purchaser might remove it, which could not be done consistently with the proposition that such improvements become a part of the realty.Summerville v. King, 98 Tex. 332, 83 S.W. 681.'

The case of Summervill v. King, 98 Tex. 332, 83 S.W. 681, 682, supra, construes Article 3294, R.C.S.1895, which is similar to Article 5452, V.A.C.S. in all respects material hereto, and construes Articles 3301, and 3302, R.C.S.1895, which are identical with the present Articles 5459 and 5471, V.A.C.S., respectively.We quote from the...