Pope v. A. T. Graham & Co.
| Decision Date | 01 January 1875 |
| Parties | W. H. POPE v. A. T. GRAHAM & CO. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Harrison. Tried below before the Hon. M. D. Ector.
A. T. Graham & Co., on the 23d September, 1873, made an agreement in writing with W. H. Pope, in which they agreed to build a house for him. The house was built in conformity with the contract, and on the 15th of July, 1874, Pope gave his note to Graham & Co. for a balance of $1,256 due on the contract, which bore a rate of interest different from the contract, but which on its face reserved a mechanics' lien. No mechanics' lien was in terms specified on the face of the original agreement. The debt for building was due, according to the building contract, about January 15, 1874, and that contract was recorded in the county in which the building was erected, June 6, 1874, and before the note was made. The contract was recorded without acknowledgment of its execution. An effort was made to defeat the enforcement of the mechanics' lien by interposing the homestead right of Pope's wife, who, it was claimed, was equitable owner of the ground on which the improvement was made, and who was not bound by the contract, but she was not a party to the present proceeding. Judgment for A. T. Graham & Co., from which Pope appealed.
James Turner, for appellant, contended that the note superseded the written agreement first made, citing 10 Bush, (Ky. R.,) 54; Hilliard on Mortgages, ch. 44, sec. 13; 10 Ves., 280; 24 Tex., 240; 2 Story's Eq., 594-5-6; Nairn v. Prowse, 6 Ves., 752; 1 Mason, 212;32 Tex., 627; 4 Shepherd, 158.
W. S. Coleman & William Aubrey, for appellees, to show that the lien was not lost by the execution of the note, cited Fonda v. Jones, 42 Miss. R., 792, (2 Am. R., 670;) Hughes v. Kearney, 1 Sch. & Lef., 132; Nairn v. Prowse, 6 Ves., 752; Mackreth v. Symmons, 15 Ves., 329; Garson v. Green, 1 Johns. Ch. R., 308; 4 Kent. Comm., Lect. 58, p. 151; 2 Story's Eq. Jur., sec. 1226, note 2; 21 Vt. R., 271; 6 B. Monr., 67; Id., 74. A lien cannot be displaced but by some act of the party holding it, which shall postpone him to a subsequent claimant. (Parker v. Keeley, 10 S. & M., 184;9 Miss., 67;2 Blackf., 218; 2 Browne, 297; 9 Mart., (La.,) 562; 4 Mart., 11; 8 Mart., 422.)
The contract between appellees and appellant was recorded within six months after the debt growing out of it for materials and labor to erect the house became due; and there can be no question that Graham & Co. had a mechanics' lien on the house erected under the contract, to secure the balance due under said contract in so far as it was competent for appellant Pope to give or create such a lien. The homestead rights of Pope could not attach to the house so erected so as to defeat this lien. (Constitution, art. 12, sec. 15; Potshuisky v. Krempkan, 26 T., 309.)
If the wife of Pope had any rights in the house by reason of her equitable ownership of the lot on which it was erected, or if her father had any such rights by reason of his legal ownership of said lot, they were neither of them parties to this suit; their rights were not adjudicated, and will not be affected by the decree or the sale thereunder. It is to be observed that the statute contemplates the enforcement of the mechanics' lien by the sale and removal of the house or other improvement, and to that extent seems to treat the house or other improvement rather as personal estate than as a part of the realty. (Paschal's Dig., art. 7114.) Be this as it may, the lien attached to all the rights of defendant Pope in the house, and the rights of no one else therein are before us for adjudication.
It is contended by appellant that the note sued on was a new contract, superseding and abrogating the original building contract, and that it amounted to a waiver of the lien under that contract.
Taking the note of the debtor for his debt does not ordinarily amount to payment or discharge of the indebtedness unless it is so expressed, or appears to have been so intended. (2 Pars. on Cont., 136; The Kimball, 3 Wall., 37;Grant v. Strong, 18...
To continue reading
Request your trial
-
Langdon v. Kleeman
...being one of intention, must be determined by the facts and circumstances of that case (Mims v. Macon Railroad Co., 3 Ga. 333; Pope v. Graham, 44 Tex. 196; Stribling v. Coal Co., 31 W.Va. 82, 5 S.E. Avery v. Hackley, 20 Wall. [U.S.] 407, 22 L.Ed. 385); and in no case will a waiver be presum......
-
Hammond Hotel And Improvement Co. v. Williams
... ... The ... authorities are numerous to the effect that a mechanic's ... lien may be waived. Pope v. Graham (1875), ... 44 Tex. 196, 27 Cyc. 261; Jones on Liens, 1500; Rockwell on ... Mechanic's Liens, 173. And there are also authorities ... ...
-
Shepherd v. Ledford
...728 S.W.2d 35, 37 (Tex.1987). More than a century ago we said that waiver is " 'largely a matter of intention' ". Pope v. A.T. Graham & Co., 44 Tex. 196, 199 (1875). More recently, we stated: "[W]aiver must be clearly established by facts or circumstances showing an intention by one party t......
-
Langdon v. Kleeman
...being one of intention, must be determined by the facts and circumstances of that case (Mims v. Macon, etc., R. Co., 3 Ga. 333; Pope v. Graham, 44 Tex. 196; Stribling v. Splint Coal Co., 31 W. Va. 82, 5 S. E. 321; Avery v. Hackley, 20 Wall. 407, 22 L. Ed. 385), and in no case will a waiver ......