West End Town Co. v. Grigg

• Decision Date: 26 March 1900
• Citation: 56 S.W. 49
• Parties: WEST END TOWN CO. v. GRIGG et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Supreme Court

Page 49

56 S.W. 49

WEST END TOWN CO. v. GRIGG et al.¹

Supreme Court of Texas.

March 26, 1900.

Error to court of civil appeals of Fourth supreme judicial district.

Action by the West End Town Company against F. B. Grigg and others. From a judgment of the court of civil appeals affirming a judgment for plaintiff but refusing to foreclose a vendor's lien on property claimed by defendants as a homestead (54 S. W. 904), plaintiff brings error. Reversed.

Denman, Franklin, Cobbs & McGown, for plaintiff in error. Lewy & Sehorn, for defendant in error.

BROWN, J.

The West End Town Company sued Grigg and wife on a number of notes alleged to be for the purchase money of two lots described in the petition. Defendants set up that the two lots constituted their homestead, and that they conveyed them to plaintiff to secure the payment of the debt represented by the notes sued upon, which was contracted for the construction of a residence upon the lots. The pleadings raised the issues presented by the following conclusions of fact, filed by the judge of the district court before whom the case was tried without a jury:

"From the evidence introduced upon the trial of this cause, I find as follows: (1) That on June 16, 1890, F. B. Grigg and Hattie M. Grigg, his wife, owned lots 28 and 29, in block 7, of the West End Town Company's First addition to the city of San Antonio, Texas, and they had no other real estate. These lots were purchased for the purpose of a home for Grigg and wife. (2) At that time said lots were vacant and unimproved lots. (3) F. B. Grigg and his wife desired to erect for themselves a dwelling upon said lots, and to this end they made application to the West End Town Company for a loan of sufficient money to erect said dwelling, and were informed by the company that it could not make a loan to them. (4) Afterwards, upon their request, the company agreed that, if Grigg and his wife would transfer the property to the West End Town Company, it would have the dwelling erected upon the lots, and then reconvey the lots, with the dwelling thereon, to F. B. Grigg and wife, for the cost of said dwelling, and would retain a vendor's lien upon the property to secure the repayment to it of the cost of building said house. (5) I find that in pursuance of said agreement, on the 16th day of June, 1890, by a deed duly acknowledged by F. B. Grigg and Hattie M. Grigg (the acknowledgment being taken in the manner required by the statutes and constitution when the wife joins in the conveyance of her homestead), conveyed the above-described property to the West End Town Company in consideration of the agreement on the part of the West End Town Company to erect said dwelling. (6) I find that, at the same time—June 16, 1890— the deed was made, a contract was made with the consent of the West End Town Company by said F. B. Grigg with W. S. Hardy and others for the construction of said dwelling at the stipulated price of $3,600, the money to be paid Hardy for constructing said house by the West End Town Company. (7) I find that at the same time, and as part of the same transaction, the West End Town Company reconveyed the said lots to F. B. Grigg and his wife, Hattie M. Grigg, the consideration being the notes herein sued upon, which notes were executed and signed as stated in the petition, the principal of which was made up of said contract price and the interest on each note from its date to its maturity; the deed and the notes retaining a vendor's lien to secure said notes. (8) I find that the execution of said deeds and the contract with Hardy constituted one transaction, and that thereafter, and in accordance with his contract, W. S. Hardy did construct the dwelling upon said property. (9) I find that for the work done by him and the material furnished by him in constructing said dwelling the West End Town Company paid to the said W. S. Hardy the contract price in installments, said installments being determined by the voucher of J. Riely Gordon, the architect, which vouchers, when presented...