Habitat, Inc. v. McKanna, 4749
| Decision Date | 27 December 1974 |
| Docket Number | No. 4749,4749 |
| Citation | 523 S.W.2d 787 |
| Parties | HABITAT, INC., and M. A. Mills, Trustee, Appellants, v. Bill McKANNA, Appellee. |
| Court | Texas Court of Appeals |
Gerald R. Coplin, Passman, Jones, Andrews, Coplin, Holley & Co., Dallas, for appellants.
Fred R. Brown, Brown, Brown & Bowen, Inc., Garland, for appellee.
This is a suit by Bill McKanna for debt and foreclosure of a mechanics' and materialmen's lien. McKanna entered into an oral contract with Town East Real Estate Agency, Inc., to provide plumbing materials and labor in connection with the construction of 42 townhouses to be built on land owned by Town East Real Estate Agency. Plaintiff alleged he was owed $14,300 for labor and materials furnished. McKanna added as defendants, U.S. Financial-Gulf & Mountain, Inc., M. A. Mills, Trustee, and Habitat, Inc., alleging they claimed an interest in the property in question.
In a nonjury trial the court awarded McKanna a $14,300 judgment against Town East Real Estate Agency and U.S. Financial-Gulf & Mountain, Inc. The court further held that plaintiff's mechanics' and materialmen's lien was valid and ordered its foreclosure. The judgment provides, however, that plaintiff's lien is inferior to a $64,000 vendor's lien and directs that such superior lien shall be extinguished by the proceeds of the sale before plaintiff's mechanics' and materialmen's lien is satisfied.
Defendants, U.S. Financial-Gulf & Mountain, Inc., M. A. Mills, Trustee, and Habitat, Inc., have appealed. Town East Real Estate Agency, Inc., has not appealed. We affirm in part and reverse and render in part.
The trial court found that plaintiff and Town East Real Estate Agency, Inc., entered into an oral contract in September of 1971 whereby plaintiff would do plumbing work on 42 townhouses to be built on the subject property for a total contract price of $27,300; that Town East paid plaintiff $13,000 in the form of 'draws' as the work progressed; that plaintiff completed his work on or about March 21, 1972; that plaintiff prepared and filed his affidavit for record in the mechanics' and materialmen's lien records on June 10, 1972; that Town East became the record owner of the subject property by deed dated October 16, 1970, and recorded October 20, 1970; that Town East executed and delivered to Fort Worth Mortgage Company a $450,000 note secured by a deed of trust covering the subject property; that both instruments were dated September 29, 1971, but the deed of trust was not filed for record until November 19, 1971; and, that plaintiff commenced visible work on the job site on October 27 or 28, 1971.
Defendants first contend the trial court erred in holding that plaintiff had a valid lien on all 42 lots. They argue that plaintiff and Town East agreed upon a price of $650 per unit and that plaintiff knew at the inception of work how much of the debt each lot was responsible for and that each lot was a separate and distinct parcel. The record reflects that plaintiff was paid $13,000 which defendants assert was for work performed on 20 units and since plaintiff was not able to testify as to which units or lots he had been paid for he was not entitled to a 'blanket lien' on all 42 townhouse units.
Plaintiff filed his lien on the following described land:
'Such property being known as 11902, 11906, 11910, 11914, 11918, 11922, and 11926 Brook Valley in the City of Balch Springs, Dallas County, Texas, and being more fully described as follows:
Being Lots One (1) through Forty-two (42), in Block 'B' of the Green Valley Townhouses Addition, an addition to the Town of Balch Springs, Dallas County, Texas.'
Defendants contend that 'townhouses' should be treated as separate and distinct parcels of land and since plaintiff recognized that the townhouses were designed for separate sale he entered into a contract to perform labor and supply materials for 42 units at a set price per unit.
The trial court found that the contract was for a total price of $27,300, and plaintiff had been paid a 'draw' of $13,000 leaving a balance owed of $14,300. Plaintiff testified he gave Town East a price on the 'complete job' which he computed on the basis of $650 per townhouse unit.
In Lyon v. Logan, 68 Tex. 521, 5 S.W. 72 (1887), the court said:
The rule is stated in 38 Tex.Jur.2d § 47, page 604, as follows:
...
To continue reading
Request your trial
-
Elmore v. McCammon
...461 (Tex.Civ.App.—Beaumont 1977, no writ) (Holder of the deed of trust cannot attack a credit bid by the mortgagee); Habitat, Inc. v. McKanna, 523 S.W.2d 787, 789-90 (Tex.Civ.App.—Eastland 1975, no writ) (Holder of a junior lien was denied standing to complain). Since parties with ascertain......
-
Diversified Mortg. Investors v. Lloyd D. Blaylock General Contractor, Inc.
...Blaylock was entitled to pursue a portion of the proceeds of the foreclosure sales in the hands of DMI, relying upon Habitat, Inc. v. McKanna, 523 S.W.2d 787 (Tex.Civ.App. Eastland 1974, no Under Article 5459, a properly perfected mechanic's lien has priority over all other liens, encumbran......
-
S.K. Drywall, Inc. v. Developers Financial Group, Inc.
...31 Cal.App.3d 891, 107 Cal.Rptr. 899 (1973); Southern Colonial Mtg. Co. v. Medeiros, 347 So.2d 736 (Fla.App.1977); Habitat v. McKanna, 523 S.W.2d 787 (Tex.App.1974)); see also Bloomington Elec. Co. v. Freeman's, Inc., 394 N.W.2d 605 (Minn.App.1986) (subcontractor who performed electrical wo......
-
Lee v. O'Leary
...Daugharthy v. Monritt Associates, 293 Md. 399, 444 A.2d 1030 (1982); Maupin v. Chaney, 139 Tex. 426, 163 S.W.2d 380 (1942); Habitat, Inc. v. McKanna, 523 S.W.2d 787 (Tex.Civ.App.--Eastland 1974, no writ). We see no reason, however, to stray from settled principles of contract law or create ......