Owens v. Heidbreder

• Decision Date: 23 March 1898
• Parties: OWENS v. HEIDBREDER.
• Court: Texas Court of Appeals

Page 1079

44 S.W. 1079

OWENS v. HEIDBREDER.

Court of Civil Appeals of Texas.

March 23, 1898.

Appeal from district court, Dallas county; Edward Gray, Judge.

Action by George W. Owens against George L. Heidbreder to establish a lien upon certain land. Judgment for defendant, and plaintiff appeals. Reversed.

George W. Owens, the appellant, brought this suit June 16, 1896, and amended his original petition February 26, 1897, against George L. Heidbreder, appellee. It is shown by the petition that J. S. Hetherington and William A. Nason, composing the firm of Hetherington & Nason, contracted with the Crystal Ice Company, a corporation, whereby the firm, at the special instance and request of the Crystal Ice Company, sold and delivered certain articles of machinery, tools, tubes, pipes, rubber goods, supplies, and other things, all shown by itemized account annexed, marked "Exhibit A," and made a part of the petition, which were used by the Crystal Ice Company in the repair and construction of its plant and machinery, buildings, fixtures, and improvements on lot of land in the town of Oak Cliff, in Dallas county, which lot is described by metes and bounds. That the contract under which the materials were to be furnished was not written, but they were furnished at dates named, the first item March 1, 1894, and the last June 7, 1894, and there were due on the same $475 at the last date, so creating a liability on the part of the ice company to pay the furnishers, Hetherington & Nason, the said sum, which it agreed to pay. That the material so furnished was used by the ice company to improve a one-story iron plate building, a full plant of machinery for the manufacture of ice. That on July 6, 1894, Hetherington & Nason delivered to the county clerk of Dallas county a correct itemized account of the materials so furnished, verified by affidavit as required by law, and caused the same to be recorded as required by law, thus acquiring a material man's lien upon the lot and improvements thereon. That the money due thereon is still unpaid, and the ice company refuses to pay the same or any part thereof. That July 7, 1894, Hetherington & Nason filed suit on the account and to foreclose their lien against the ice company in the district court of Dallas county in cause No. 13,225, and on their application a receiver was appointed, who qualified and took charge of the property, the court having jurisdiction of the parties and subject-matter of the suit. That the ice company also received from George W. Owens certain articles, lumber, doors, windows, putty, nails, glass, locks, wire, wood, and hardware, all itemized in Exhibit B, attached to the petition and made a part of the same, at the prices named therein, for the purpose of repairing and perfecting the ice plant. The first item in the account was furnished March 1, 1894, and the last June 18, 1894, upon which is still due, after allowing all credits, $417.27. That the materials so furnished were used in the construction of necessary repairs on the same building. That this account against the ice company was filed with the county clerk of Dallas county the 11th day of July, 1894, duly verified, and was duly recorded, as required by law, to fix the material man's lien on the lot and improvements to secure the payment, whereby Owens acquired a material man's lien on the lot and improvements thereon. That July 12, 1894, Owens sued the ice company by intervention in suit No. 13,225, on said account, and to foreclose his lien. Another account of $214.63, of Briggs, Young & Co., is also set up against the ice company, shown by averments to constitute a material man's lien on the same lot and improvements, verified, filed, and registered, fixing the lien, as shown in Exhibit C, the first item of which was furnished June 27, 1894. That Briggs, Young & Co. also intervened in suit No. 13,225 to recover on their account and to foreclose their lien. That on October 23, 1894, the court in which the suit was pending rendered judgment for all the claimants, establishing their respective accounts against the ice company, and foreclosing all their liens on the property, as they each had prayed, and ordered the receiver to sell the lot, the building, and the improvements, machinery, and all things connected with the plant, as well as all accounts and notes unpaid and due the company, and on November 16, 1894, at public sale, after advertising, as required by law, before the court house door in Dallas county, to the highest bidder, for cash, and to report his action to the court, directing the proceeds of the sale to be applied, first, to payment of court costs, compensation of the receiver and special master, as allowed by the court, and then to other debts as named. That the property was sold by the receiver as directed by the judgment November 16, 1894, at which George W. Owens became the purchaser, for $1,000 which he paid, and the sale was afterwards confirmed by the court, and the receiver, pursuant thereto, executed and delivered to Owens, December 3, 1894, a deed to the property,—the lot of land, together with the buildings, outhouses, improvements, machinery, apparatus, tools, etc., situated on and pertaining to the land described in the decree of foreclosure. That the $1,000 paid by Owens was consumed in the payment of costs of suit and the $800 receiver's certificates preferred in the judgment, and not a dollar was paid of the $1,000 towards the satisfaction of the lien debts established, which are still due and unpaid. That on the 13th day of January, 1894, the ice company executed to its order three promissory notes for $2,000, $2,500, and $1,500, respectively, due in one, two, and three years, bearing 8 per cent. interest, payable semiannually, providing that, upon failure to pay the interest, the holder to declare all the notes due, and, to secure the notes, executed and delivered a deed of trust on the lot of land and improvements then on the same, and on any additional improvements that might be added thereto; and afterwards the ice company indorsed the notes in blank, and delivered them to George L. Heidbreder, defendant, who thereby became the owner of the same. That the deed of trust was duly recorded in Dallas county, January 13, 1894. That default was made in the payment of interest on the notes, and January 13, 1895, defendant declared all the notes due, and H. A. Haeussler, the trustee named in the deed of trust, refusing to act under its provisions, defendant, as provided in the deed of trust, appointed F. M. Etheridge substitute trustee, and on the 7th of May, 1895, after advertising the lot of land and the ice plant, as required by the trust deed, sold the same, as provided in the deed of trust, to the highest bidder, for cash, and defendant became the purchaser, and now asserts title to the property through the deed of trust. That the lot, without the improvements, is worth $75. The improvements on the land when the deed of trust was executed are worth $1,000, and the improvements added by the material men already named are worth $1,900. That the new improvements were so interwoven with the old as to be incapable of separation, without irreparable injury to the premises. That the claims of Hetherington & Nason, Owens, and Briggs, Young & Co. aggregate $1,107.85, and are in full force, and have never been paid or satisfied, and Owens has never been reimbursed the $1,000 he bid and paid at his purchase, and to the extent of $1,000 he is subrogated to the rights of himself, Hetherington & Nason, and Briggs, Young & Co., as lienholders on the new improvements added by them to the lot and the ice plant, and that he has a superior and prior lien to that of defendant acquired under the deed of trust on the new improvements and repairs added by the material furnished by the material men aforesaid, $417.27, plaintiff's claim, and $1,000 bid and paid by him at the foreclosure sale. That the Crystal Ice Company is a defunct corporation, insolvent, and has no interest or right in the suit. That on the 23d day of May, 1895, George R. Heidbreder brought suit against plaintiff, Owens, in the United States circuit court for the Northern district of Texas, at Dallas, on the law docket of the court, his action of trespass to try title and damages, seeking to recover the premises herein, and damages for removing certain of the houses, fixtures, and machinery from the premises, the court having jurisdiction of the parties and subject-matter, but without jurisdiction to adjudicate the rights of this plaintiff based on his lien on the property, which could have been only on the equity docket of the court. That in the suit, in addition to the lot, Heidbreder sought to recover of this plaintiff value of property charged to have been removed from the premises and converted by this plaintiff, describing the property. George Owens answered the suit, and on the trial, June 4, 1895, Heidbreder recovered of Owens judgment for the premises, and $500 damages for the fixtures and property removed from the premises and converted. Writ of error was sued out by this plaintiff on said judgment to the United States circuit court of appeals for the Fifth circuit at New Orleans, La., where, on the 26th day of January, 1897, the judgment was affirmed (24 C. C. A. 362, 78 Fed. 837), and afterwards a mandate was returned to the trial court, and on the 23d day of February, 1897, writ of possession and execution were issued on the judgment, and plaintiff was forced to surrender the premises and pay the damages adjudged against him about the 25th day of February, 1897, to George L. Heidbreder. That part of the material furnished by the aforenamed material men lienholders entered into the building and fixtures removed from the premises, and defendant has received the benefit of the same. Prayer for decree in plaintiff's favor, establishing his lien as superior to that of defendant, to the extent of...