Glenn v. Shamburger

• Citation: 240 S.W. 701
• Decision Date: 05 April 1922
• Docket Number: (No. 1939.)
• Parties: GLENN v. SHAMBURGER et al.
• Court: Court of Appeals of Texas

Page 701

240 S.W. 701

GLENN v. SHAMBURGER et al.

(No. 1939.)

Court of Civil Appeals of Texas. Amarillo.

April 5, 1922.

Rehearing Denied May 5, 1922.

Appeal from District Court, Collingsworth County; J. A. Nabers, Judge.

Suit by Bob Glenn against J. H. Steelman on notes retaining a vendor's lien, in which C. D. Shamburger was made a party defendant and filed a cross-action against Steelman. From a judgment of foreclosure of a vendor's lien, but denying a foreclosure as to the house, and a judgment of foreclosure for C. D. Shamburger of a chattel mortgage lien upon the house, plaintiff appeals. Reversed and remanded.

Cocke & Gribble, of Wellington, for appellant.

R. H. Templeton and R. Q. Murphree, both of Wellington, and Jos. H. Aynesworth and Mathis & Caldwell, all of Wichita Falls, for appellees.

HALL, J.

The appellant, Glenn, filed this suit to recover the amount of six promissory notes, retaining a vendor's lien upon a half section of land in Collingsworth county. The notes were executed by J. H. Steelman on November 4, 1919, and due January 1, 1921, 1922, 1923, 1924, 1925, and 1926, thereafter, respectively. The notes aggregated $3,214, provided for interest from date at 8 per cent., and contained the usual stipulation for attorney's fees, together with the acceleration clause. He alleged that the notes were executed in part payment for the half section of land, and prayed for judgment for the amount of the notes and foreclosure of the lien. C. D. Shamburger was made a party defendant, alleging that he claimed some interest in the premises. Shamburger, by a cross-action against Steelman, sought to recover upon a certain promissory note executed November 23, 1920, by the said Steelman, in the sum of $1,690.65. He alleged that this note was due for lumber and material furnished by him to Steelman for the erection of a nine-room house upon the land in controversy, that it was secured by deed of trust lien upon the land, and that later, on the 5th day of July, 1921, Steelman and wife executed a chattel mortgage upon the said house to secure said note. He prayed for judgment and for foreclosure of his deed of trust and chattel mortgage liens. Steelman answered, admitting the execution and delivery of the notes sued on by both parties, as well as the deed of trust and chattel mortgage, and acknowledged the existence of the vendor's lien, and pleaded that the land and house constituted his homestead. By supplemental petition Glenn denied the existence of any lien in favor of Shamburger, alleged that the house was a part of the realty, and together with the lien constituted the homestead of Steelman.

The case was tried to a jury, whose findings are in effect as follows: That Shamburger's agent and Steelman did not, as an inducement for the latter to execute the chattel mortgage, agree that Shamburger should look alone to the foreclosure on the house for payment of the Shamburger note. Second, that the house was severed from the land; that is, it was not attached to it at the time the chattel mortgage to Shamburger was executed. That Shamburger did not agree with Steelman to accept the deed of trust and look alone to the property for the payment of his debt. Based upon this verdict, the court rendered judgment in favor of Glenn for the full amount of his notes, principal, interest, and attorney's fees, and a foreclosure of the vendor's lien upon the land, but denying him a foreclosure as to the house. There was further a judgment in favor of Shamburger for the amount of his debt, and a foreclosure in his favor of the chattel mortgage lien upon the house. Under appropriate assignments and propositions the findings and judgment are attacked from many angles, which it will not be necessary for us to consider in detail. It appears from the evidence that, after Steelman purchased the half section of land, he purchased lumber and other building material from Shamburger and constructed the house in question upon it; that he occupied it as a home for more than a year; that the house was completed some time in the early part of the year 1920, and that on November 23, 1920, Steelman, without being joined by his wife, executed a deed of trust to secure his note given to Shamburger for the lumber and building material.

It is not claimed that there was ever any agreement between Shamburger and Steelman that a materialman's lien should be fixed upon the premises and improvements under the statutes providing for such liens. This deed of trust was duly recorded. Later, on or about the 4th day of April, 1921, a storm blew the house from the foundation, and left it about 100 feet from where it originally stood, but still upon the premises in question. On July 5, 1921, Steelman and wife executed a chattel mortgage in regular form upon the house as additional security for their note due Shamburger, and this was filed on August 5, 1921. It is settled law that the vendor's lien is not prejudiced by the subsequent establishment of a homestead thereon by the vendee, and no homestead right can be asserted either by Steelman or any one claiming through or under him against Glenn's suit for unpaid purchase money. Quinn v. Dickinson (Tex. Civ. App.) 146 S. W. 993; Evans v. Marlow (Tex. Civ. App.) 149 S. W. 347; Jackson v. Bradshaw, 24 Tex. Civ. App. 30, 57 S. W. 878; Id., 28 Tex. Civ. App. 394, 67 S. W. 438.

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