Schutze v. Dabney

• Decision Date: 04 April 1918
• Docket Number: (No. 5901.)
• Citation: 204 S.W. 342
• Parties: SCHUTZE et al. v. DABNEY et al.
• Court: Texas Court of Appeals

204 S.W. 342

SCHUTZE et al. v. DABNEY et al.

(No. 5901.)

Court of Civil Appeals of Texas. Austin.

April 4, 1918.

Rehearing Denied April 15, 1918.

On Motion to Reform Judgment, May 22, 1918.

Appeal from District Court, Travis County; Ireland Graves, Judge.

Suit by L. M. Dabney and others, trustees, etc., against Mrs. Annie Schutze and others. From a decree for plaintiffs and foreclosure of a lien, defendants appeal. Affirmed in part, and in part reversed and remanded, and judgment reformed on motion.

Geo. S. Dowell, of Houston, and R. E. Cofer, of Austin, for appellants. Brooks, Hart & Woodward, of Austin, for appellees.

Findings of Fact.

JENKINS, J.

The following map and the notations thereon will aid in understanding the issues involved herein: NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The state of Texas, as the successor of the Republic of Texas, was formerly the owner of all of the land shown on said map, and is still the owner of the 40 acres shown thereon as "College Hill," the same being now the campus of the State University.

On October 28, 1848, the state of Texas, by letters patent, granted to Louis Horst 59 acres of land, including blocks 22½, 35, and 36, shown on said map, and other blocks to the west, describing same by block numbers, as shown on said map, and not otherwise. On March 28, 1849, the state of Texas patented block 49 to S. G. Hancy.

The appellant is the owner by mesne conveyances from Louis Horst of lot 34 in said block 36, described in such conveyances by lot and block numbers. The appellant executed the following contract:

"The State of Texas, County of Travis.

"Mrs. Annie Schutze, owner of all of lot No. 34 in block 36, div. D, fronting 70 feet on the west side of Guadalupe street, in the city of Austin, Tex., known as No. ____ and described as follows: * * * in consideration of the improvement of said street, including paving, guttering, and curbing the same by virtue of a resolution adopted by the council of said city, and the contract and specifications therefor adopted by said council, upon the completion of said improvements in front of said premises and their acceptance by the city, do promise to pay Texas Bitulithic Company or its assigns whatever sum shall be ascertained to be the pro rata share of the costs of said improvements in front of said premises, according to the front-foot rule under the terms of said resolution and contract not to exceed the sum of ____ dollars ($____), being three hundred fifteen and 55/100 dollars ($315.55) for paving, excavating, and guttering, and ____ dollars ($____) for the construction of concrete curbs in front of said premises, and being at the rate of $5.5078 per front foot for said paving, including excavating and guttering, and $____ per front foot for curb. But, if the frontage of said premises on said street shall be ascertained to exceed the amount above stated, then the cost of improvements in front of said excess shall be paid for to said company at the rates per front foot above stated.

"The amount due hereon shall be paid as follows: All cash at the option of the undersigned or $____ 30 days after said improvements have been completed in front of said premises, and accepted by the city, and the balance in four equal installments on or before one, two, three, and four years respectively after such acceptance at the rate of 7 per cent. per annum. payable annually, together with reasonable attorney's fees thereon and all costs of collection if incurred.

"If default shall be made in the payment of any installment of principal or interest when due, at the option of said company or other legal holder hereof, the whole amount then unpaid hereon shall at once become due and collectible.

"And in consideration of said improvements to and upon said premises and the fact that thereby the value thereof will be enhanced in excess of the cost, ____, the undersigned, do hereby expressly grant unto Texas Bitulithic Company and its assigns a mechanic's lien upon said premises, to secure the payment of indebtedness herein mentioned, and ____ do hereby consent that the said council of Austin may levy a special assessment against the said property and the owner thereof for an amount ascertained to be the proportionate share chargeable against the same as herein provided.

"It is agreed that the acceptance of said improvements by the city shall be conclusive between the parties hereto of the proper performance of the contract therefor, and in consideration hereof, and of the extension of the time of payment of the said assessment hereby granted, the said assessment by the city and all proceedings with reference thereto are hereby expressly ratified and confirmed, and any errors or invalidity therein are hereby waived.

"It is expressly understood this obligation is not conditioned upon the improvement of said street before all property abutting thereon, but same may be omitted before the property of any owner or owners who shall not make satisfactory arrangements with said company for the payment of his or their proportion of the cost of such improvements. This obligation shall be deemed cumulative and independent of such proceedings as said city council may take or cause to be taken to assess and secure the payment of the cost of such improvement upon said premises or its owner, and any payment made to the city under such proceedings shall operate as a credit and shall be indorsed hereon.

"Witness our hands this the 31st day of January, A. D. 1914.

                                      Mrs. Annie Schutze
                                     "A. C. Schutze."
                

The work was done as by said contract required. Appellant owes appellees, as the assignees of the account, the amount for which judgment was rendered herein. The amount of the attorney's fee for which judgment was rendered is reasonable, if any attorney's fee is recoverable under the contract. At the time of the execution of the contract sued upon, and prior thereto, and at the time of the trial hereof, appellant was a widow, residing upon lot 34 with her minor children, as her homestead.

The case was tried before the court without a jury, and judgment was rendered against appellant for the amount due on said contract, together with 10 per cent. attorney's fee, and with foreclosure of lien on said lot 34.

The court also found that A. C. Schutze had no interest in the case.

Opinion.

It is the contention of appellant that the judgment was erroneous in awarding attorney's fees, for the reason the contract does not state any contingency upon which attorney's fees might become due. With this we do not agree. The agreement was to pay reasonable attorney's fees, "if incurred." We think this means if legally incurred; that is to say, if it should become necessary to place the claim in the hands of attorneys for collection. Such necessity arose in this case by reason of the failure of appellant to pay when due.

The judgment was for the foreclosure of a lien on the premises involved. It does not state whether the lien is a mechanic's lien or a mortgage lien. In its conclusion of law filed herein the court states that the appellee has a mortgage lien which he is entitled to have foreclosed. The contract calls it a mechanic's lien. The appellee in his petition calls it a mechanic's lien; and we think the lien provided for in the contract is a mechanic's lien.

Appellee argues that the lien mentioned in the contract had all of the elements of a mortgage, in that "it shows the intention of the parties to pledge land as security for debt, with a defeasance upon the payment of the debt, and with the right of redemption and foreclosure."

Though a mechanic's lien and a mortgage have in common the element of security for debt, they are not the same thing. They are recognized by the Constitution and laws of this state as being different things. "Mortgage" was a term well understood before the adoption of our Constitution and statutes. Though a mortgage does not in fact convey title, except as security for debt, it does to that extent convey title. A mortgage in form possesses all of the requisites of a deed, with the additional clause of defeasance.

In the excerpt from appellee's brief above set out the contract sued on is referred to as a "pledge of land." Pledge applies to personal property, and not to land; also, that it is a pledge with "a defeasance," and with "the right of redemption." "Defeasance" and "redemption" imply a conveyance, and there is no clause of conveyance in the contract here involved. It is no reply to say that these distinctions are technical. But, aside from these, there is this substantial difference between a mortgage and a mechanic's lien: In a mortgage the lien is created by contract; a mechanic's lien is created by law. It arises out of a contract which provides for the debt, but the lien is given by statute. Guaranty Co. v. Cash, 99 Tex. 555, 91 S. W. 781; Lambert v. Williams, 2 Tex. Civ. App. 413, 21 S. W. 108.

The distinction between a mortgage and a mechanic's lien is important in the instant case, in that, if the appellant owns the street in front of lot 34 to the center of such street, the homestead question aside, the appellee has a mechanic's lien thereon. Lewis v. Paving Co., 184 S. W. 680; Waples v. Ross, 141 S. W. 1027. On the other hand, if the fee in the street does not belong to appellant, no mechanic's lien exists under the contract. A mechanic's lien cannot be created by contract on land other than that upon which the improvements are made. Guaranty Co. v. Cash and Lambert v. Williams, supra.

Did the conveyance from the state to Horst convey the fee to the center of the street, in front of the blocks, as shown on the map set out in the statement of facts? If so, the mesne conveyance from Horst to appellant conveyed such title to appellant, and the street which was improved in front of lot 34 is a part of said lot. If not, it is a parcel of land...