133 S.W. 300 | Tex. App. | 1910
So far as it is necessary to state them in order to understand the questions made on this appeal and the rulings of this court thereupon, the facts found by the trial court were as follows: In December, 1901, when he acquired title to Subdivision G of Lot 4, in Block 5, of the Wiggins Addition to Mineral Wells, appellant owned and used as his homestead Block 19 in said addition, then of the value, without reference to improvements thereon, of a sum in excess of $5000. From time to time during the period intervening between December 1, 1906, and June 30, 1907, appellant purchased, and during the period intervening between said month of December and the 10th or 15th day of September, 1907, placed in position on the north half of said Block 19, so as to be removable without injury to the freehold thereof, *181 an ice manufacturing plant, consisting of an engine, boilers, condensers, compressors, etc. About December 1, 1906, appellant borrowed of appellee $10,000, and a short time thereafterwards borrowed of it about $16,000, which he stated to appellee he intended to use, and which, as he purchased same, he did use, in paying for the machinery constituting said ice manufacturing plant. At the time the last mentioned loan was made to him appellant agreed, for the purpose of securing the repayment of the same, to give to appellee a lien or mortgage on all of said machinery. The loan was made by appellee on the faith of and in reliance upon that agreement. July 5, 1907, appellant attempted to comply with his agreement by making and delivering to appellee a mortgage on said machinery and on said north half of Block 19.
The suit was by appellee to recover a balance (which the court found to be the sum of $12,295.83) unpaid of the sums so loaned to appellant, to foreclose a lien it claimed on said machinery to secure same, by reason of appellant's said verbal agreement to give it a lien or mortgage on said machinery and the mortgage he afterwards executed in an attempt to comply with his agreement, and to foreclose an attachment lien it claimed to have acquired on said Subdivision G of Lot 4, in Block 5, and other property.
On the facts as found by him the trial court concluded as matters of law that Block 19 during all the time of the dealings between the parties was appellant's homestead; that said Subdivision G of Lot 4, in Block 5, was never a part of appellant's homestead; that as between appellant and appellee, because of the former's verbal agreement to give the latter a lien or mortgage on said machinery and his attempt by the execution of the mortgage of July 5, 1907, to comply therewith, said machinery, though afterwards affixed to the land, remained personalty, never became a part of appellant's homestead, and that as personalty appellee had an equitable lien thereon which it was entitled to have foreclosed and said machinery sold for the purpose of satisfying said indebtedness in its favor. The judgment of the court was in accordance with such conclusions.
The findings of fact by the trial court that the money loaned by appellee to appellant was borrowed by the latter for the purpose, avowedly, of purchasing and paying for the machinery; that it was so used by appellant; that appellant agreed at the time he borrowed it to give to appellee "a lien or mortgage," quoting the language of the court, "upon all of said machinery which he was then purchasing to secure it for such money"; that on the faith of the promise so made by appellant appellee loaned him the money; and that appellant afterwards by a mortgage executed by him attempted to comply with his promise, are not attacked by any of the assignments in appellant's brief. But the assignments do question the correctness of the conclusion as to the law reached by the court that by reason of the facts so found appellee had a lien on the machinery. The contention is that even as between the parties thereto a verbal agreement to give it can not create a lien on personal property. Of the several cases cited in appellant's *182
brief as supporting his contention, all of them, except Gay v. Hardeman,
The trial court found that at the time the agreement to give a lien on the machinery was made by appellant, same, "with the exception possibly of the boiler, had not been erected on said Block 19 or put in completed position for the making of ice." If, therefore, the lien was a valid one, as we think it was, it became operative as against the machinery before same had become a part of appellant's homestead, and its continued operation could not be held to have been defeated by reason of the fact that the machinery may afterwards have been so attached to the homestead as otherwise thereby to have become a part of same. Harkey v. Cain,
We conclude that the judgment in so far as it foreclosed a lien claimed by appellee on the machinery is not erroneous.
The further contention is made that the judgment is erroneous in so far as it foreclosed the attachment lien on Subdivision G of Lot 4, in Block 5 of the Wiggins' Addition, because same was a part of appellant's homestead. This contention is based upon another one, towit, that the trial court's finding as a fact that Block 19, constituting appellant's homestead at the time he acquired title to said Subdivision G, without reference to improvements thereon, was worth a sum exceeding $5000, is not supported by, but is contrary to, the testimony in the record. The contention must be overruled. The witnesses Ritchie, McCraken and Raines each testified that Block 19 at that time was worth more than the sum of $5000. The fact that other witnesses testified that it was then worth less than that sum is not a reason why this court should reverse the judgment. It was the province of the trial court, a jury having been waived, to determine the conflict in the evidence, and his determination of it is as conclusive on this court as would be the finding of a jury in a case where the testimony was conflicting.
The judgment is affirmed.
Affirmed.
Writ of error refused.