Hicks v. Faust

• Decision Date: 14 May 1919
• Docket Number: (App. No. 10675; Mo. No. 4496.)
• Citation: Hicks v. Faust, 212 S.W. 608, 109 Tex. 481 (Tex. 1919)
• Parties: HICKS et al. v. FAUST et al.
• Court: Texas Supreme Court

Page 608

212 S.W. 608

HICKS et al. v.FAUST et al.

(App. No. 10675; Mo. No. 4496.)

Supreme Court of Texas.

March 26 and May 14, 1919.

Dissenting Opinion, May 16, 1919.

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

Action by R. B. Spencer & Co. against J. G. Brown and others. Judgment giving plaintiff less relief than demanded was reversed and rendered by the Court of Civil Appeals (198 S. W. 1179), and H. C. Hicks and others, trustees of Bosque Presbyterian Church, U. S. A., bring error, C. G. Faust and others being defendants in error. Application for writ of error refused.

Chandler & Pannill, of Stephenville, for plaintiffs in error.

Lattimore, Bouldin & Lattimore, of Ft. Worth, for defendants in error.

PER CURIAM.

Writ of error refused and motion for rehearing denied.

HAWKINS, J. (dissenting).

Out of 561 cases in which, during our present term, this court has disposed of applications for the writ of error, this case is one of the five in which I have felt duty bound to dissent from the action of this court upon such application, two of the five being cases in which I thought the writ ought to have been refused on the merits instead of the petitions for that writ being dismissed, as they were, for want of jurisdiction in this court.

The judgment of the Court of Civil Appeals for the Eighth Supreme Judicial District (Spencer v. Brown, 198 S. W. 1179), foreclosing the asserted materialman's statutory lien upon the church's "rock building," although approved by a majority of this court, appears to me to be seriously erroneous; hence my dissent, heretofore, to the order of this court refusing the writ of error, and my present dissent from its order denying a rehearing.

My threefold reasons for such dissent are as follows:

First.When the material for repair of said rock building was furnished to and used by Brown for that purpose he was not the statutory "owner" of that building, nor did he own the land on which it stood.When carefully analyzed his status as to the church, and also as to the materialmen, was merely and simply that of a "contractor."R. S. arts. 5621-5623.

Second.No statutory "notice" of the furnishing of said material—and, indeed, no notice whatsoever—has been shown to have been given by said materialmen to the church trustees prior to payment to Brown by said church trustees of the full contract price for making said repairs, which payment they made long before the claim of lien was filed in the county clerk's office.

Third.The decision of the Court of Civil Appeals in the present case is in conflict with several prior decisions of this court, and with several prior decisions of various Courts of Civil Appeals.

Said judgment of foreclosure involves what I consider material and grave misconceptions of the facts and of the law of this case in these particulars:

(a) With regard to the legal effect of R. S. art. 2873, relating to "consent" of the State Board of Education to sales of school property within its operation; (b) with regard to the proper construction and legal effect of a certain "consent" resolution by said State Board as related to an antecedent contract by the school trustees for sale of property belonging to the independent school district, and formerly used for public free school purposes; (c) as to whether statutory "notices" of the furnishing of said material were given prior to full payment by the "owner" of the contract price for said repairs.

Those misconceptions concerning article 2873 and those concerning said resolution are material, particularly, in all respects in which that statute and that resolution were applied by the Court of Civil Appeals to Brown's previously executed contract with the school trustees, by the terms of which he was to acquire said building only as personalty from the independent school district and remove it from the land.

That the judgment and opinion of the Court of Civil Appeals do involve such misconceptions concerning article 2873, and concerning said resolution, is more apparent when said contract is considered in connection with Brown's subsequent written contract with the trustees of said church, whereby, conditionally, he agreed to complete and fit up said rock building and to turn it over to said church for its use, and with the still later contract between the church trustees and the school trustees whereby the latter agreed to convey to the former the tract of land upon which said rock building stood, both of said contracts having been executed prior to the inception of what may be termed the repair period, during which said material was furnished for and used in repairing said rock building, and both contracts having been carried later into full effect and completely performed.Those misconceptions concerning the giving of statutory notices are material in that said judgment fastens a materialman's lien upon said rock building in the hands of its present legal and equitable owners, although, seasonably and without statutory "notice,"they paid their contractor in full for repairing that building.

The logical consequence of that judgment of foreclosure is, under the facts, to overturn a long line of what have been regarded generally as well-settled decisions of this court and of various Courts of Civil Appeals of this state construing and applying our materialman's statutes —a consequence which, I feel sure, was not intended in this instance by the Court of Civil Appeals or by my Associates.Such, as I understand it, is this case in outline.

The essential facts are these: Spencer & Co., as materialmen, sought in this action a personal judgment against Brown for a debt incurred by him for building material supplied by them to him for repairing said rock building, and against Brown and the Bosque Presbyterian Church, U. S. A., a corporation, and its trustees, Hicks, Howard, and Knight, as "owners" of said building, for foreclosure of an alleged constitutional and statutory materialman's lien upon that building and the 2½ acres upon which it stands, in the town of Lingleville, which, it seems, comprises, or is within, the Lingleville independent school district.Said school district formerly owned a tract of land containing 10 acres, and embracing a smaller tract of 2½ acres upon which said rock building stood.Without previous consent of either the State Board of Education or the county commissioners' court for any sale or disposition of any of said property, the trustees of said district, on August 8, 1914, entered into a written contract with Brown, a building contractor, by the terms of which he was to erect, for said district, an "addition" to a school building standing on another tract of land, in consideration of which addition he was to receive, among other things, said rock building, which he was to remove from the land.If Brown made said addition to the other building, that fact, and the times when he began and completed it, are not satisfactorily shown by the record, and said rock building was never physically severed from the land, nor was it ever conveyed, by deed, to Brown.

However, in August, 1914, after the 8th day of that month, yet prior to the beginning of said repair period, said church, through its trustees, entered into two contracts relative to the ownership of said rock building, one being with Brown and the other with said school trustees.That contract with Brown was conditioned that if the church could acquire from said school district said smaller tract of land, Brown, for a stipulated consideration, would repair that rock building and turn it over to the church for its use.Said other contract was one whereby said school trustees agreed to convey said smaller tract of land to said church trustees.Both of these contracts were fully performed.

On September 28, 1914, the repairs on said rock building having been practically completed, that building was turned over by Brown to, and was accepted by, the church trustees, who thereupon, and on or about that day, paid to Brown the unpaid residue of the entire contract price for making said repairs.Not until long afterward did the materialmen give to said church trustees any character of "notice" concerning the material used by Brown in making said repairs.

On October 19, 1914, the State Board of Education, which had never consented to any trade or sale or contract affecting disposition of said 10 acres or any part thereof, or of said rock building, adopted the following resolution, which, it seems, all parties and the Court of Civil Appeals have treated as embracing said smaller tract of 2½ acres upon which stood said rock building:

"Resolved by the State Board of Education of Texas that permission is hereby granted to the board of school trustees of Lingleville independent school district to sell to the highest bidder, for the purpose of investing the proceeds in more convenient and desirable school property, the following described property: `All or any part of a ten-acre tract of land known as the old school ground, for the purpose of investing the proceeds in more desirable school property.'"

Subsequently the trustees of said school district executed and delivered to the trustees of said church a deed to said 2½ acres of land, impliedly including said rock building.Said deed bears date of October 31, 1914, and, presumably, was delivered then.From and after that date, admittedly, and even under the averments of plaintiff's amended petition, the full equitable and legal title to said smaller tract and to said rock building thereon has been in the trustees of said church.On November 27, 1914, said claim of lien was filed, apparently against said church trustees and against Brown.Certain additional facts relative to the giving of "notice" will be stated below in their proper connection.

Upon the trial of the case, without a jury, the district court rendered a personal judgment against Brown for the value...