93 S.W. 235 | Tex. App. | 1906
This is a suit in the District Court of Van Zandt County, Texas, by appellee J. P. DuBose against appellant D. D. Sudduth, to recover judgment on a promissory note for the sum of $330, executed by defendant D. D. Sudduth on the 2d day of January, 1900, with 10 percent interest from date of note, which note was given by said defendant D. D. Sudduth in renewal of the balance due on the last of a series of three notes executed by defendant D. D. Sudduth and J. E. Francis on the 2d day of January, 1893, for $433.33 each, which said three notes were given by said Sudduth and Francis for money with which to purchase material and pay for labor, and with which they, D. D. Sudduth and J. E. Francis, did purchase material and pay for labor to erect a brick store house on the land described in plaintiff's petition. The property upon which the mechanic's lien was sought to be enforced, was the business homestead of the defendant D. D. Sudduth when the original notes and contract were executed, and when the note sued on was executed.
A trial resulted in a judgment for plaintiff for his debt and foreclosing the mechanic's lien. Defendant D. D. Sudduth only perfected an appeal. *228 Opinion. — On the 2d day of January, 1893, Francis Sudduth, a firm composed of J. E. Francis and D. D. Sudduth, joined by D. S. Sudduth, wife of D. D. Sudduth, executed to Tom Clark a mechanic's lien on a certain lot in the town of Canton, Texas. The property was at the time the business homestead of D. D. Sudduth. The mechanic's lien secured a series of three notes, each for $433.33, executed by said firm of Francis Sudduth, for labor and material for the erection of a brick store house on the said lot. Thereafter D. D. Sudduth assumed all the liability of J. E. Francis upon said note and lien. Two of said notes had been paid, leaving due on the third the sum of $330, and the same being about to become barred by the statute of limitations D. D. Sudduth, at the request of Clark, executed a new note for said amount, extending the time of the payment of the debt.
Clark, for a valuable consideration, transferred said renewal note to appellee, who brought suit thereon, setting up the mechanic's lien, and prayed judgment for the amount of the note and a foreclosure of the lien.
The first question presented is, can the husband, without the consent of his wife, renew a note secured by a mechanic's lien on the business homestead, extending the time of the payment of the debt and continue in force said mechanic's lien as security for such renewal note? This question was considered by the Court of Civil Appeals for the Fourth District on a state of facts quite similar to those above set out, and it was there held that the husband did not have such authority. (San Antonio Real Estate and Building Loan Ass'n v. Stewart, 65 S.W. Rep., 665.) A writ of error was denied by the Supreme Court. It is true, in the case cited, the wife was a party to the note, and the note was barred by limitation when the husband executed the renewal. We do not see that the fact that she was a party to the note makes any difference, for, being a married woman, she was not bound for the debt by such signing. Nor does the fact that the bar of the statute was complete in the Stewart case, while in this case the original debt was about to become barred, make the holding in that case inapplicable. If he has not the right to revive a barred debt, he would not have the right to prevent the bar of the statute in the first instance. The opinion in the Stewart case bases the ruling upon the fact that the same formalities are required to place an incumbrance on the homestead as on the wife's separate property, and the husband has no more power to incumber the one than he has the other. It is clear that when the wife has given a mortgage upon her separate property to secure a community debt, there can be no renewal of the debt or extension of time for its payment by the husband alone that would be binding on the wife. (Wofford v. Unger,
It is contended that as the lien on the homestead was not enforceable the trial court should have so held, and as the debt sued on was less than five hundred dollars, an amount not within its jurisdiction, the District Court should have dismissed the cause. The same contention was made in the motion for rehearing in the case of Ablowich v. National Bank,
Affirmed in part and reversed and rendered in part.