Guggenheim v. Dallas Plumbing Co., 1655-6114.

• Decision Date: 19 April 1933
• Docket Number: No. 1655-6114.,1655-6114.
• Citation: 59 S.W.2d 105
• Parties: GUGGENHEIM v. DALLAS PLUMBING CO. et al.
• Court: Texas Supreme Court

59 S.W.2d 105

GUGGENHEIM v. DALLAS PLUMBING CO. et al.

No. 1655-6114.

Commission of Appeals of Texas, Section A.

April 19, 1933.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Suit by the Dallas Plumbing Company and others against C. R. Guggenheim. Judgment in favor of plaintiffs was affirmed by the Court of Civil Appeals [42 S.W.(2d) 268], and defendant brings error.

Reversed and rendered.

George T. Burgess, of Dallas, for plaintiff in error.

J. L. Zumwalt, of Dallas, for defendants in error.

HARVEY, Presiding Judge.

On March 16, 1927, C. R. Guggenheim conveyed to Carl Wolff a certain lot on Prospect street in the city of Dallas. The lot had a building on it. The deed executed by Guggenheim shows that the property was conveyed subject to an outstanding lien there described, and that the consideration for the conveyance was $50 cash paid by Wolff, and the execution by the latter of his note for $3,200. To secure the payment of this note, the vendor's lien was expressly reserved in the deed, and, in addition, a deed of trust on the property was executed by Wolff. Both instruments were promptly recorded. The deed of trust conferred on the trustee therein the usual power of sale. In December, 1927, the note for $3,200 being unpaid, the trustee duly sold the property in accordance with the terms and provisions of the deed of trust, and Guggenheim became the purchaser at such sale. In the meantime, Wolff had caused extensive repairs and improvements to be made on the building situated on said lot. The repairs and improvements so made became an integral part of said building, and are of such nature that same cannot be separated from the lot and building. In making such repairs and improvements, Wolff became indebted to various materialmen who furnished material for said work. These materialmen fixed their liens against the property in accordance with the statutes. They seek in the present suit to foreclose their said liens, claiming that their liens were superior to the deed of trust lien of Guggenheim, and therefore were not affected by the foreclosure sale under the deed of trust. As basis for this claim of superiority for their liens, said materialmen alleged that as part of the consideration for the conveyance of said property by Guggenheim to Wolff, the latter agreed to make the repairs and improvements in question. Over the objection of Guggenheim, the materialmen introduced parol testimony to show that such agreement was made as alleged; and from this testimony the jury found that such agreement was so made. There was nothing in the deed or the deed of trust to show that such an agreement was made. Upon the verdict of the jury, in the respect mentioned, the trial court gave judgment for the materialmen and foreclosed their respective liens on the property. The materialmen contend that by requiring Wolff to make the agreement mentioned, as part of the consideration for the property conveyed, Guggenheim subordinated his purchase-money lien to such liens as might thereafter become attached to the property, for material furnished Wolff for the making of the required repairs and improvements. The Court of Civil Appeals, 42 S.W.(2d) 268, as well as the trial court, sustained...