Robertson v. Vernon
| Decision Date | 22 December 1927 |
| Docket Number | (No. 602.) |
| Citation | 3 S.W.2d 573 |
| Parties | ROBERTSON et al. v. VERNON et ux.<SMALL><SUP>*</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from District Court, Johnson County; Irwin T. Ward, Judge.
Suit by Billie Vernon and wife against E. W. Robertson and others. From a judgment for plaintiffs canceling mechanic's lien and deed of trust, defendants appeal. Affirmed.
J. M. Moore and J.K. Russell, both of Cleburne, and Jos. W. Hale, of Waco, for appellants.
B. Jay Jackson, T. E. Darcy, and P. J. Jackson, all of Cleburne, for appellees.
Appellees instituted this suit to cancel a mechanic's lien, a deed of trust, and a trustee's deed on their homestead. It appears that appellees, who are man and wife, owned a home in Cleburne, and were occupying the same as such. They entered into a contract with appellant E. W. Robertson, under the terms of which he was to wreck the building, and, in lieu thereof, build a much nicer and more commodious house. Appellees signed a mechanic's lien and, after the building was completed, signed two notes, one for $1,080 and the other for $2,607.38, and signed a deed of trust on their home to secure the payment of said notes. Appellees paid $1,226 on said indebtedness, and, having refused to make further payments, the trustee named in the deed of trust sold said property, after the institution of this suit, and with full knowledge thereof on her part, to the appellant Eva Robertson, a sister of appellant E. W. Robertson. Appellees alleged that they did not acknowledge either the mechanic's lien or the deed of trust; that they did not appear before any notary for said purpose; and that the purported notary certificate on each of said instruments was false and untrue; and that appellants knew said facts. They further alleged that, before they signed the mechanic's lien, appellant E. W. Robertson had represented to them that the improvements would not cost more than $1,080, and they further specifically alleged that the improvements placed on the premises were not worth exceeding $1,900. Appellants filed a general demurrer, general denial, and by cross-action asked that the title to the property be quieted in Eva Robertson by reason of her being the purchaser at the sale by the trustee, and, in the alternative, if it should be held that said sale was for any reason invalid, that they have judgment against appellees for the unpaid portion of the notes, together with a foreclosure of the deed of trust and mechanic's lien.
The jury found that neither Billie Vernon nor his wife, Ruby Louise Vernon, appeared before the notary public and acknowledged the mechanic's lien. They found that Billie Vernon did go before a notary public and acknowledge the deed of trust, but found that his wife did not. The jury further found that the actual value of the improvements placed on the property was $1,575.00. There was no objection made by any of the parties to the issues as submitted. Appellants did not request any additional issues submitted.
Based on the findings of the jury and additional findings by the court, judgment was entered by the court canceling the mechanic's lien and deed of trust as well as the deed executed by the trustee, and judgment was rendered in favor of appellants against appellees for the unpaid portion of the amount of the two notes which they had executed. Appellees make no complaint of the money judgment rendered against them.
Appellants, by various assignments of error and propositions thereunder, contend that the findings of the jury are not only against the preponderance of the evidence, but are entirely unsupported by the testimony; and further contend that in no event is a trial court or jury authorized to find, on the uncorroborated evidence of the grantors, that a mechanic's lien or deed of trust was not acknowledged, when the notary's certificate thereto is in proper form. We overrule these assignments. Appellant E. W. Robertson testified that the mechanic's lien was signed in his office by appellees late in the afternoon, between 5 and 7 o'clock and that he personally called the notary public to the office, and that appellees each signed and acknowledged same before the notary in his (appellant's) office. The notary whose name is signed to the certificate testified to the same effect. Each of the appellees testified positively that, when they signed the mechanic's lien, it was late in the evening, and that the notary was not in the office at the time, and that no one was in the office except appellant E. W. Robertson; that they did not know the notary whose name is signed to the certificate, and had never prior to the trial of this suit seen him; and that they did not acknowledge the mechanic's lien before any person.
The notary public testified that he kept a notary book in which he recorded the acknowledgments he took to deeds, but that he did not record acknowledgments to mechanic's liens. His notary book was produced, and revealed the fact that he did record at least in some instances the acknowledgments he took to mechanic's liens, but said book did not show that he took the particular acknowledgment in question.
There was no contention that the acknowledgment was taken at any other time or place except there in the...
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