240 S.W. 701 | Tex. App. | 1922
The case was tried to a jury, whose findings are in effect as follows: That Shamburger's agent and Steelman did not, as an inducement for the latter to execute the chattel mortgage, agree that Shamburger should look alone to the foreclosure on the house for payment of the Shamburger note. Second, that the house was severed from the land; that is, it was not attached to it at the time the chattel mortgage to Shamburger was executed. That Shamburger did not agree with Steelman to accept the deed of *702 trust and look alone to the property for the payment of his debt. Based upon this verdict, the court rendered judgment in favor of Glenn for the full amount of his notes, principal, interest, and attorney's fees, and a foreclosure of the vendor's lien upon the land, but denying him a foreclosure as to the house. There was further a judgment in favor of Shamburger for the amount of his debt, and a foreclosure in his favor of the chattel mortgage lien upon the house. Under appropriate assignments and propositions the findings and judgment are attacked from many angles, which it will not be necessary for us to consider in detail. It appears from the evidence that, after Steelman purchased the half section of land, he purchased lumber and other building material from Shamburger and constructed the house in question upon it; that he occupied it as a home for more than a year; that the house was completed some time in the early part of the year 1920, and that on November 23, 1920, Steelman, without being joined by his wife, executed a deed of trust to secure his note given to Shamburger for the lumber and building material.
It is not claimed that there was ever any agreement between Shamburger and Steelman that a materialman's lien should be fixed upon the premises and improvements under the statutes providing for such liens. This deed of trust was duly recorded. Later, on or about the 4th day of April, 1921, a storm blew the house from the foundation, and left it about 100 feet from where it originally stood, but still upon the premises in question. On July 5, 1921, Steelman and wife executed a chattel mortgage in regular form upon the house as additional security for their note due Shamburger, and this was filed on August 5, 1921. It is settled law that the vendor's lien is not prejudiced by the subsequent establishment of a homestead thereon by the vendee, and no homestead right can be asserted either by Steelman or any one claiming through or under him against Glenn's suit for unpaid purchase money. Quinn v. Dickinson (Tex.Civ.App.)
When Steelman erected the house, it was with the evident purpose and intent of making it his home. The evidence shows that he occupied it as such for over a year, impressing it with the homestead character before the chattel mortgage was executed. It was a nine-room house, and was intended to be a permanent improvement. Under the uncontroverted facts it must be treated as a part of the realty. Watson v. Markham,
"A vendee, in possession of land under an executory contract of purchase, has no right to erect a building on the premises as property, separate and distinct from the freehold, and an intention to do so, no matter how clearly manifested, is of no avail without an agreement, express or implied, with the landowner that it shall not become part of the realty. This must be so where the vendee fails to fulfill the contract and acquire title."
According to the test provided in O'Neil v. Quilter (Tex.Sup.)
It is the rule in this state that the involuntary destruction of exempt property by fire does not deprive the owner of his right to collect the insurance as also exempt. Chase v. Swayne,
It is insisted that under the case of Land Mortgage Bank v. Quanah Hotel Co.,
We find it unnecessary to enter into a discussion of this particular phase of the law, since it would have no bearing whatever upon the rights of Glenn, who alone has appealed. Steelman testified in effect that he was a man of family; that he built the house for a home, and lived in it ever since it was completed, and used and cultivated the land upon which it stood. There is in appellee's brief an illuminating discussion of the question of the abandonment of a homestead and the rights of creditors under such condition, but in the view we take of the case this discussion becomes purely academic. It may be admitted that as between Steelman and Shamburger there was an abandonment of the nine-room house as a home, and it may be further admitted that as between them the deed of trust and chattel mortgage became operative as liens upon the house; still this would not impair the validity of appellant's prior vendor's lien, in the absence of some agreement or act upon his part which could he construed as a waiver or an estoppel. When the house was attached to the realty, it became eo instante subject to the vendor's lien existing against the land. The storm, by changing the position of the house, could not affect the rule of law, and no agreement made between Steelman and Shamburger, without the assent of Glenn, could impair the latter's security.
For the reasons stated the judgment is reversed, and the cause remanded.