Wallace Gin Co. v. Burton-Lingo Co.

• Decision Date: 14 April 1937
• Docket Number: No. 8450.,8450.
• Citation: 104 S.W.2d 891
• Parties: WALLACE GIN CO. et al. v. BURTON-LINGO CO.
• Court: Texas Court of Appeals

104 S.W.2d 891

WALLACE GIN CO. et al. v.BURTON-LINGO CO.

No. 8450.

Court of Civil Appeals of Texas. Austin.

April 14, 1937.

Appeal from District Court, Coleman County; E. J. Miller, Judge.

Suit by the Burton-Lingo Company against the Wallace Gin Company and others.Judgment for plaintiff, and defendants appeal.

Affirmed.

Eckford & McMahon, of Dallas, for appellants.

W. Marcus Weatherred, of Coleman, for appellee.

BAUGH, Justice.

Burton-Lingo Company, a corporation, brought this suit against the Wallace Gin Company, a corporation, for a balance due for materials furnished to the latter and used by it in the erection of a cotton house in connection with its gin located in the city of Coleman, Tex.; and for foreclosure of its constitutional and statutory materialman's lien, duly fixed, on said property.The Gullett Gin Company, a corporation, Coleman Community Gin Association, a corporation, and Clanton Davis were made parties, as claiming some interest in the property, which the plaintiff alleged was inferior to its lien.Judgment was rendered for the amount of the debt in favor of appellee against the Wallace Gin Company, the lien established as superior to any claim of the other appellants herein, and the improvements in question ordered sold separately, in satisfaction of the appellee's debt.From this judgment, the defendants have appealed.

The Wallace Gin Company, in 1930, owned and operated the gin in question.In June, 1930, it executed a deed of trust on said property to secure the payment of some $15,000 in notes owing to Clanton Davis.In February, 1934, it purchased from Burton-Lingo Company certain materials which were used in the erection of a cotton house, a separate and distinct unit from the gin proper, but which was then or subsequently connected with the gin by a roof extension.No question is raised as to the amount of the debt, nor that the materialman's lien was properly recorded and fixed on the improvements.Having defaulted in the payment of the notes held by Clanton Davis, judgment was obtained thereon against the Wallace Gin Company and the property sold under foreclosure at sheriff's sale.The Coleman Community Gin Association bought in the property with notice both actual and constructive of the Burton-Lingo claim and lien.The only question here presented is whether or not the court erred in ordering a foreclosure of the materialman's lien on the improvements involved.Appellants' contention in this regard is, first, that the evidence shows that the cotton house, in which the materials were used, cannot be detached and removed either as a unit, or by dismantling, from the premises without injury to the real estate and to the other improvements thereon as they stood prior to the time that the cotton house was built; and, second, that because the Burton-Lingo Company did not furnish all of the material that went into the erection of said cotton house, it was not entitled to the foreclosure granted.

Neither of these contentions is sustained.In connection with the first, the trial court found in his findings of fact as follows: "I find, from the evidence that said building and improvements can be removed without detriment or material injury to said lot or real estate, and without detriment or material injury to the remaining improvements on said lot, and without detriment or material...