34 S.W. 1001 | Tex. App. | 1896
The following statement of the case by appellant is adopted: "This is a suit by appellant against the appellees, John D. Paschall and his wife, Allie Paschall, on a note for $1500, executed by the appellees to the National Building, Loan and Protective Union of Minneapolis, Minnesota, and to foreclose a mortgage lien on the homestead of the appellees — the money which said note and lien contract were given to secure having been used, as plaintiff alleged, to pay for the labor and material used in improving the homestead of appellees after they had duly executed and acknowledged the contract authorizing said improvement as required for husband and wife in making a sale of the homestead. Defendants denied the lien, and at the trial in the court below, April 12, 1895, appellant had judgment against Jno. D. Paschall for $1938.75, the principal, interest and attorney's fees as sued for, but the court charged the jury to find that appellant had no lien on said property to secure said debt, and they so found, and judgment was entered denying appellant foreclosure of its lien on said property. Appellant's motion for new trial was overruled, to which it excepted, and gave notice of appeal, and now brings the case before this court for review on the following assignments of error."
The first assignment of error is as follows: "The court erred in excluding from the jury the contract between Chas. Robbins and the National Building, Loan and Protective Union of Minneapolis, Minnesota, for the erection and completion of the residence of defendants, on which foreclosure is sought in this action, since the execution of said contract *615 was admitted, and though signed only by Chas. Robbins, it purports to be a contract between the parties named for the purpose stated, and it was shown that said Robbins did erect and complete said house contracted for, and was paid therefor by said Union out of the money defendants got for that purpose."
1. This assignment is well taken. The contract between the National Building, Loan and Protective Union and appellees for the construction of the building of appellees had been duly executed under the privy acknowledgment of the wife; said Union had bound itself to construct for appellees their residence; the Union entered into a contract with Chas. Robbins to build the house, which he had done, and for which he had been paid under the contract. The fact that the signature of the National Building, Loan and Protective Union was not signed to the contract would not render it invalid. It was signed by Chas. Robbins; it was delivered to the Union; it was acted upon by both parties; the house was constructed and paid for in accordance with the terms of the contract. In the case of Campbell v. McFadin,
2. In the second assignment of error appellant complains at the ruling of the court in refusing to subrogate the appellant to the rights of the holders of the vendor's lien notes upon the lot which were paid off out of the money furnished by the loan company. In its pleading appellant set up facts showing the payment of these vendor's lien notes out of the money furnished by the loan company, and asked to be subrogated to the rights of the holders of such lien under such payment. Appellant was entitled to this relief. Hensel v. Association,
3. The third assignment of error is as follows: "The court erred in charging the jury as follows: `You are told that no recovery can be had so far as it is sought to enforce a lien on the homestead of the defendants,' and in refusing to submit to the jury the issue as to whether or not plaintiff was entitled to a lien, and in what sum, on the homestead of the defendants." This assignment of error is also well taken. There was a valid contract entered into by appellees and the loan company, whereby the latter agreed to erect the improvements upon the homestead of appellees in consideration of the sum of $1500; and it further appears that appellees subscribed for stock in the loan company, and that they made formal application to the company upon one of its loan blanks for the loan, and the amount of money agreed upon, which was furnished by the company, was mostly paid out upon the orders for the building of the house, and in payment of the vendor's lien existing upon the property. Appellees insist that this was a loan of money without reference to the *616
written contract between the parties, upon which the whole transaction was based. We can not agree to this contention, and must hold that the original contract, and all the instruments subsequently executed in reference thereto, must be considered together; and they show conclusively the purpose and object of the parties in procuring the money; and, in so far as such money was used in paying off the vendor's lien upon the property, the appellant became subrogated to such vendor's lien, and the court should have so instructed the jury as to have required them to find for the plaintiff the amount of such vendor's lien, and that the same should have been enforced against the property. Also, the amount of money expended in the construction of such building and in the material procured therefor, was a valid contract lien, and to that extent the lien under the contract should have been enforced against the property. Lippencott v. York,
For the errors of the court above mentioned, the judgment is reversed and the cause remanded for a new trial.
Reversed and remanded.
