*1 COMPANY, Appellant LONE STAR GAS , v. E. et al., SHEANER Appellees.
No. 3401. Appeals
Court of Civil Texas. Waco.
Dec. 1956.
Rehearing Denied Jan. 1957. ' ' Newcomb, 'S'hytles, 'Marshall R. W. .
Dallas, appellant.' *2 856 Dallas, appel- Wood, April In 1955 Sheaner in his
Chancellor & for defaulted payments, The owing $238 on the heater. lees.
Gas Company turned the contract over to attorney collection, its brought for McDONALD, Chief Justice. this suit for debt and foreclosure the Gas by Lone Star brought was This suit Sheaner plaintiff against Company as At the time of the installation defendants Tomlin as and W. James heater, Drive, water against Sheaner 3050 Norwalk money judgment recover a plain- house purchase and real estate which the unpaid balance for $252 heater, tiff Company Gas fore- installed the water heater, and for price water of a having Funk, were against by Pressley owned he lien chattel closure of a acquired by warranty general same deed being latter and Sheaner Corporation, from Central Building was heater possession the person in whose duly deed being recorded. Plaintiff Gas was taken by default Judgment situated. Company on installed the water heater sum- motion for Sheaner, but against Pressley premises Funk’s Funk’s without plaintiff’s denying mary judgment consent, knowledge Funk’s and without lien on the water asserted to foreclose its knowledge heater or consent installed the was sus- Tomlin against defendant heater prem- in lieu of heater that was on the appeals, by Court. Plaintiff Trial tained permanent May 1955 ises as In fixture. Tomlin was that defendant contending Funk, deed, Pressley warranty general construc- of law with charged as a matter premises, together sold provided in Article as of its lien tive notice appurtenances belonging, and thereto R.C.S., plaintiff since duly (which defendant re- Tomlin deed of such article. requirements all of the purchased the corded). Defendant Tomlin dispute are without in case facts The faith, property valuable con- good in for a way pleadings, us are before and sideration, knowledge, without notice or and af- summary judgment, for motions constructive, plaintiff Gas actual or follows: fidavits, as summarized and are Company’sclaim heater. De- to the water stranger Jack Sheaner plaintiff fendant Lone Star Gas December 1954 In at time the record title property Company Sheaner a water heater sold Jack he executed $249, on old water $24.90 less trade-in appears thereafter, nowhere times heater, payment, plus finance less down $10 property. title to the chain of record $38.52, unpaid leaving an bal- charges purchased The house pay agreed to which Sheaner $252 ance custody possession, and con- was in Tomlin monthly installments of each. $7.04 36 purchase time of the trol of Funk at the a conditional sales Sheaner Tomlin and Tomlin believed of same Star, which contained Lone contract estate, including the water that the real provisions, described mortgage-lien usual thereon, belonged to affixed heater stated it was to be heater the water such, to Tomlin and was sold Drive, Dallas, Norwalk installed at purchasing .so relied Tomlin Texas. thereon). affixed (with the heater in the house installed heater was The of the record foregoing state Under the Dallas, Drive, Texas. Norwalk at 3050 plaintiff granted Court Trial Sheaner; plaintiff’s denied motion was filed in contract-mortgage lien judgment of foreclosure of summary Records the Dallas Mortgage the Chattel heater defendant 'water lien as "Lien on Ma- office County Clerk’s Tomlin; granted defendant Tomlin’s Realty”. Situated chinery plain- when summary judgment motion for thereto, and not in him. as to nothing Company take tiff places chaser’s article *3 chain of title. This noted, plaintiff with As notice as to on the as to them same basis 5498, in record R.C.S. the terms of Article realty. one dealing with the lien, and now con ing its mortgage state that the It is this complied, the law of defendant tends that so having a mortgage by record of a law notice deed or matter of with charged aas estate, dtily although re to the title to real such of corded, ato sub is not notice constructive 5498, provides: Article R.C.S. sequent purchaser owner from the record * * * of instrument property, because any machinery “When prop title to such chain of susceptible being attached of to erty. way to in such a as become a upon fixture located thereto and is real 51, 480, Tex.Jur., p. 36 states the Sec. estate in manner as the same rule: may thereto, be a fixture deemed person “The a a deed record of upon at the time of its location who is not to have the record shown there is a lien or under been connected the title * *, by written instrument evidenced subsequent purchaser a claims which * * *, purchaser purchaser subsequent is not notice ato and * * evidencing the instrument said lien property.” from an * owner of the description contains a of said * * *, machinery well as as the To the same Brown v. Acker effect are: real estate it is to which 'be-lo- 771; Lump man, Tex.Com.App., 17 S.W.2d * * *, cated and such instrument 1070; Adams, kin v. 11 Tex. S.W. 74 is registered of under Titles, 492-493; Tex.Jur., pp. 36 Patton on Act, registration then the of 44; Am.Jur., 99, p. 475. 45 Sec. Sec. * * instrument said Tex.Jur., 58, p. * * * states: 36 Sec. persons shall be notice to * * of all the owners of provides that the rec- “The statute of the indebtedness secured said in- of instrument authorized to ord strument recorded if per- be recorded shall be notice to length in the deed records records such instru- sons of existence of mortgages upon realty county of of pro- of this ment. literal terms * where the real estate is situated persons require that all be vision would appears on the held to know what im- We therefore note that the Notice instrument, duly face of recorded ported by proper recording of the chattel many are of there statements mortgage lien is: proper to the effect that the rec- cases at length “The same as recorded if of which has been ord an instrument in the records deed or records mort- of notice authorized to recorded is to be gages upon the county where realty of proposition But this all the world. the real estate is situated.” subject important qualifications; to registration does not have such apparent From it is foregoing might impute notice as broad to effect gives properly Article construction a literal be inferred from realty, recorded the statute. question Notice, reference no registration greater an be “The dignity than would extended trust, only deed, its contents mortgage upon carries notice deed estate, although properly, such real filed' persons who are hound those record, constitute did not constructive search the record circumstances notice a bona fide defendant instrument. Notice such an value, purchaser realty, for recorded without and contents execution purchased subsequent notice of from. imputed to writing is * * * Pressley Funk, record record who^ But the the true owner chasers, etc. lying purpose was at instruments the time of the exclusive only is notice possession, custody, chain title. and control purchaser’s within a premises. *4 Titles, Record on Sec. 44: “Patton chain Instruments outside vendor’s Further, opinion we are of the of title. that such lien did not and could not have effect vesting legal in the (including states “But in most Company injury Gas to inflict substantial by only provided facilities Texas) impunity with records, to the freehold estate of per- finding the for Statute Pressley Funk, and to the real be any particular are title tinent to longing to Funk at the .time when the Grantees. of Grantors and Indices * * * water permanently heater was affixedto the hold only fair rule is to realty. long The law has been well settled will an record of that the in this state that a identity chattel loses its notice, is if it not constructive afford personal property when it becomes under a chain which outside the realty affixedto in such manner that it can White v. (Citing: claims title. chaser not be doing removed without substantial 564; 556, 92 Tex. 50 S.W. McGregor, injury realty. Consequently, to the we Morehead, 104 Tex. Breen v. must .assume from the established facts in 1047.) S.W. this case that the water heater in con would he to im- otherwise “To hold troversy could not be removed under fore parties duty pose such closure mortgage of a covering in- every search general making injury same without substantial to the record.” strument for realty filed to which had become it affixed. by
Since Funk was not bound the chattel mortgage lien, Tomlin by was not bound follows that we a chattel It think 5498,. under the realty, by lien on one Art. mortgage executed R.C.S. realty, owner of who was not the appears nowhere chain
whose name
in the
It
follows that the
of the Trial
realty, could
not constitute
title to
Court Affirmed.
purchaser
notice to a bona fide
constructive
owner,
realty from the record
of the
TIREY,
(dissenting).
lien,
value,
although
without notice of
Justice
In the case
lien was filed
record.
agree
I am unable to
with the disposition
bar,
Company,
plaintiff
without the
by
of this cause as made
the majority opin-
Pressley
consent of
knowledge or
ion, wherein it refuses to allow a foreclo-
premises
the owner
entered the
mortgage
sure of
lien
Tomlin.
premises
removed
the water heater
I
opinion,
As understand the majority
thereon
and installed
it
thereon
another water
permanent
is of the view that the Lone
Star Gas
heater as
fixture under an
Com-
pany complied
with the terms of
agreement
Sheaner,
Art.
recording
R.C.S. in the
of its mortgage
title to the real
the record
estate. We think
mortgage
Notwithstanding
opinion
lien
this fact the
the chattel
“ * * *
Sheaner,
says:
was not the
we think a chattel
who
record owner
mortgage
estate,
realty,
or
lien on
one
was
chain of title to
in-
whose
enforce his
under the
realty, and
thereto
owner of
not the
strument
his
chain of
appears
name nowhere
title,
reservation of
as in
cases
construc-
other
realty,
constitute
could not
to the
upon personal property
liens
hereunder.”
purchaser of
fide
to a bona
tive notice
value,
owner, for
record
from the
It is true that the Lone
Gas Com-
Star
although
without notice of
pany,
Pressley
while
Funk was the owner
all, the
(First
record.”
lien was filed for
not,
of the property,
by installing
could
realty, but is
on the
lien is not
heater, impress
the water
lien
realty.)
heater installed
the water
consent,
Funk
knowledge
without his
ma-
holding
my
that such
It is
view
but when
property to Tom-
Funk sold the
here
record
undisputed
jority under the
lin,
pro-
express
Tomlin came under the
very
conflict
in irreconcilable
visions of the statute here under considera-
statute, after
Such
the statute.
terms of
tion.
ISo
am of the
that the con-
view
done
necessary to be
what is
setting out
majority opinion
clusion
where
(which
his lien
filing of
mortgagee
says:
“since Funk was
bound
n statute
*5
case
instant
lien,
chattel mortgage
Tomlin was not
* *
“*
and such
says:
with),
provisions
bound
the same
under the
n is
under the
registered
5498, R.C.S.”,
Art.
is in direct and irrec-
instru-
of such
Act,
registration
then the
oncilable
the
conflict with the terms of
lien,
or
mortgage,
said
ment
undisputed
statute aforesaid and
rec-
the
n reservation
by this
provided for
of title
ord in this cause.
persons there-
to
Act,
be notice
shall
any right
acquiring
or
after dealing
any
I
have
been able to find
decision
machinery or other'manu-
in said
(cid:127)or interest
dealing
our courts
the
factual
exact
realty upon which
article, or the
factured
However,
situation here
is
before us.
it
improvements
or other
is located
the same
my
opinion
view that the
of the Commis-
estate) of
real
on said
property situated
or
Appeals
sion of
in the Citizens National
holders
or
of the owners
rights
the
Co., reported
Bank
Mfg.
of Abilene v. Elk
instru-
said
secured
indebtedness
the
5,'
1062,point
in Tex.Com.App., 29 S.W.2d
length
at
recorded
as if
ment
the
case of
recent
the.Ft. Worth Court
mortgages
records
or
Co.,
deed records
the
in Weisenberger v. Lone Star Gas
county where
dis.),
upon realty
Tex.Civ.App.,
(writ
the
chinery other or 5498, aforesaid, represents Article the manu- other machinery to such be as State, public policy of our as fixed the superior any lien or to article factured matters, Legislature and I think any existing in one to said real es- rewrite, authority the are without courts improvements prop- or other or other tate public policy of this the State when it has existing thereon and situated erty located Legislature, been determined absent machinery location of said time a violation of our Constitution. viewMy article thereon manufactured other [and only point before us here is only exception], but noth- follows then whether or not the Lone Star Com- be give shall held to contained ing herein right pany had a to foreclose its lien under lien, mortgage or res- holder here, undisputed factual situation upon any right to or claim ervation it The fact that I think did. own- except estate save gas at the time the er of heater his installed, and foreclose mort- give his establish did not consent company gas of title reservation ma- sale made his gage point, article, because manufactured is beside chinery or other and tenant Funk gas time the at the parted had with his title foreclose,
company its suit filed grantee may liable to his be
fact that Funk Funk us. warranty before is not his here is not and he party
not a to this suit relief, ask- Tomlin nor is
making claim for I think Funk.
ing for relief court, wherein the trial mort- allow a foreclosure
refuses to' re- be should
gage lien lien of and the rendered
versed and things Company be in all
Lone Star Gas
foreclosed. PYLE, Appellant,
Jack C.
v. Appellees. al., MITCHELL et
Tommie
No. 6899. Appeals of Texas. of Civil
Court Texarkana. 27, 1956.
Dec.
Rehearing Jan. 1957. Denied