Standard Savings & Loan Ass'n v. Davis, 4458.

• Decision Date: 17 June 1935
• Docket Number: No. 4458.,4458.
• Citation: 85 S.W.2d 333
• Parties: STANDARD SAVINGS & LOAN ASS'N et al. v. DAVIS et ux.
• Court: Texas Court of Appeals

85 S.W.2d 333

STANDARD SAVINGS & LOAN ASS'N et al. v.DAVIS et ux.

No. 4458.

Court of Civil Appeals of Texas. Amarillo.

June 17, 1935.

Rehearing Denied July 8, 1935.

Appeal from District Court, Floyd County; Kenneth Bain, Judge.

Action by C. H. Davis and wife against the Standard Savings & Loan Association and others, for cancellation of liens and for reduction of indebtedness, wherein defendants sought foreclosure of liens.Judgment of foreclosure denied and the liens canceled, but judgment was entered against plaintiff Davis on the debt, and defendants appeal.

Judgment denying foreclosure reversed and rendered, and in other respects affirmed.

Leroy Smith, of Fort Worth, and Ayres & Ayres, of Floydada, for appellants.

H. D. Payne, of Floydada, and Lockhart & Brown, of Lubbock, for appellees.

MARTIN, Justice.

Appellant was, at all the dates mentioned herein, a building and loan association, regularly chartered and doing business under the laws of Michigan, with a permit to do business in Texas as a mutual building and loan association.Appellees, husband and wife, owned a homestead in the city of Floydada, Tex., and procured a loan from appellant to take up an indebtedness secured by a purported mechanic's lien against such homestead.

The pleadings are very lengthy, and will not be literally reproduced.Appellees filed suit against appellants and their pleadings sufficiently raised the issues: That the aforesaid mechanic's lien was void for uncertainty, and was barred by limitation; that the trust deed given in lieu of such lien was void, and the contract between the parties usurious.They asked for a cancellation of appellants' liens, and for a reduction of said indebtedness to the extent of the aggregate of all interest payments thereon, by reason of the alleged presence of usury.

Appellant, after answering the above, sought, by proper pleadings, to foreclose its claimed mechanic's and deed of trust liens against appellees' property.

Judgment of foreclosure was denied, the liens canceled as prayed for by appellees, but judgment was entered against the husband for the said debt, thus impliedly holding the contract untainted by usury.

The most hotly contested legal issue here is whether the purported mechanic's lien was void for uncertainty, because no plans or specifications for labor and improvements on such homestead were incorporated, either expressly or by reference, in the writing which granted a lien upon said homestead.

The material portions of such contract follow:

             "Floydada, Texas, April 18, 1928
                

"For value received, we promise to pay to the order of Higginbotham-Bartlett Company at its office in the City of Floydada County of Floyd Texas, Twenty five hundred and no/100 Dollars, payable as follows: $2500.00 on the First day of July, 1928 and $____ with interest from date hereof, until maturity, at the rate of ten per cent per annum, interest payable semi-annually as it accrues. * * *

"This obligation is given for building material agreed upon and for money to be loaned in advance to us, or upon our order, to employ labor, which labor and building material are to be used by us in the erection or repair of improvements on the following described tract of land owned by us in fee simple, free and clear of any encumbrances whatsoever, situated in Floyd County, State of Texas, and described as follows, to-wit:

"All of lot number 4, Block No. sixty seven (67), in the town of Floydada, Texas as shown by the map or plat of said Town of Floydada(Floyd City) recorded in Book 2F, Page 294, Deed Records of Floyd County, Texas.

"We hereby agree and contract that the payment of this obligation shall be, and is hereby secured by a mechanic's materialman's and contractor's lien upon said land and said improvements now situate thereon and to be placed thereon, and we hereby grant and convey unto the said Higginbotham-Bartlett Company an express mechanic's materialman's and contractor's lien upon said above described land to secure the above set out obligation."

This instrument was properly executed and acknowledged by appellees before the delivery of any material or performance of any labor, and is attacked here upon the sole ground that such instrument is void for uncertainty.It conclusively appears that on the date of its execution and acknowledgment, plans and specifications had been agreed upon between the parties and were then in existence; that all labor and material for the erection of such improvements were actually supplied or paid for by the lumber company; that such improvements were actually erected in exact accordance with said plans, were satisfactory to appellees, and were accepted in writing as satisfactory before the money was paid by appellants to take up such lien.

The portion of section 50, article 16 of our State Constitution, which controls the disposition of this question, is as follows: "The homestead of a family shall be, and is hereby protected from forced sale, for the payment of all debts except * * * for work and material used in constructing improvements thereon, and in this last case only when the work and material are contracted for in writing, with the consent of the wife given in the same manner as is required in making a sale and conveyance of the homestead."

The right to a homestead, and to a materialman's lien on same for improvements thereon, if in writing, are both creatures of the Constitution.The one is no more sacred than the other.Undoubtedly, the authors of the above article had in mind the encouragement of real home ownership, knowing that a naked lot without a house was a shelterless possession for a family.We believe this constitutional provision should be liberally construed in the spirit of its exalted purpose.Nor do we share with appellees the view that the door for fraud against married women will be opened if their contention is not sustained.Here the appellees do not claim any fraud, accident, or mistake.They procured precisely what they bargained for.Their defense is the objection that plans and specifications (a child of the modern architect) were not made a part of their contract.The precedents are, in our opinion, against appellees' contention.We quote briefly from the authorities:

"We think this provision of the constitution should be construed in aid of the objects in view, and that a contract or lien, in whatsoever form it may appear, which excludes the idea of a mere loan, and is executed in accordance with the formalities required by the constitution, with the real purpose and effect of thereby securing the necessary labor and material used in constructing improvements upon the homestead lot, should be upheld."Downard et ux. v. Nat'l Loan & Inv. Co. of Detroit et al., 22 Tex. Civ. 570, 55 S. W. 981, 982.

"As relates to the statute requiring the `terms' of the contract to be set forth, it recites that material of the agreed value of $397 is to be delivered to appellants for use in erecting, repairing, and improving the homestead, fixes the time of payment, the rate of interest to be paid, confesses and grants a lien to secure payment thereof, and describes the land upon which the improvements are to be situated.It is true the contract contained no itemization or description of the material, by piece, quantity, or article, but obviously it would be proper to show by parol testimony the quantity, pieces, or articles that were agreed on, and that they were thereafter actually delivered as the contract contemplated they would be, without affecting the force or validity of the lien."Lipscomb et ux. v. Adamson Lumber Co.(Tex. Civ. App.)217 S. W. 228, 230.

"Hence we are of the opinion * * * that it was not essential to the validity of the contract between the Harrops and the contractor, or to the vitality of the lien, as provided for by article 5631, supra, that the plans and specifications should be included in and made a part of the written contract."Harrop et al. v. Nat'l Loan & Inv. Co. of Detroit et al.(Tex. Civ. App.)204 S. W. 878, 880.

See, also, Grammar v. Hesperian B. & L. Ass'n(Tex. Civ. App.)70 S.W.(2d) 220, error refused;Pioneer B. & L. Ass'n v. Everheart, 18 Tex. Civ. App. 192, 44 S. W. 885, approved by Commission of Appeals in Barber v. Herring, 229 S. W. 472, 475;Bosley v. Pease(Tex. Civ. App.)22 S. W. 516, andId., 86 Tex. 292, 24 S. W. 279;Rice v. Brown(Tex. Com. App.)296 S. W. 495;Pioneer Sav. & L. Co. v. Edwards, 12 Tex. Civ. App. 556, 34 S. W. 192;Blackmon v. Texas Securities Co.(Tex. Civ. App.)196 S. W. 590;Turbeville v. Book(Tex. Civ. App.)226 S. W. 814, error dismissed;Bayless v. Standard Sav. & L. Ass'n, 39 Tex. Civ. App. 353, 87 S. W. 872.

In Collier v. Valley Bldg. & Loan Ass'n(Tex. Com. App.)62 S.W.(2d) 82, relied on by appellees, the contract under attack failed to describe the homestead.Obviously a lien could not be created against real estate by a contract omitting a description of same.Here the essential elements of parties, consideration and subject-matter sufficiently, though in somewhat general terms, appear on the face of the contract.It was not in our opinion too indefinite and uncertain to create a lien against the real estate mentioned therein.

It is next contended that appellants had no lien, because the aforesaid contract had become barred by limitation and its deed of trust lien was void because Mrs. Davis, one of the appellees herein, had not legally acknowledged same as required by law.The original lien already discussed was properly acknowledged by her.It was extended by the terms of the trust deed, which appellees contend was never legally acknowledged by Mrs. Davis.The note was again extended in writing...