*1 HARRIS al. CARLILE v. Galveston. of Texas. of Civil 16, 1931. April Houston, appellant. Waugh, A. M. May Jr., Tully, O. P. Stevens E. A. Houston, appellees.

GRAVES, J. appellees adopt cor- general rect statement pellant’s brief: suit out of which this arose was instituted in courts of district County by appellees, Maggie Harris ‘husband, against and H. Carlile, Aynes- A. B. Kenneth H. worth, Jr., John N. and Union Build- Association, Loan to cancel and annul deed trust lien and mechanic’s lien se- curing an indebtedness of (8900.00)Dollars on a certain tract sep- land owned Harris as her occupied arate as a homestead Appellees alleged -herself and husband. had executed a mechanie’s-lien con- tract one W. R. Reid as provided which ing for the erection a dwell- house on the land of Harris for the sum -of Three Thousand Dol- lars, and had executed a note in amount as well as a deed trust fur- securing same, note, contract, ther trust, duly assigned deed of had been to Un- Building ion and which property. Ap- constituted first liens pellees alleged further that on the same date defendant, duced execute second mechan- trust, ic’s-lien promis- sory note, sum of Nine Hundred ($900.00) Dollars, purported to be a and inferior to the Three Thou- sand the second liens were void because house had been Reid and not defendant, and because J. H. Rat- cliff, explained instrument pellees, and because the plain .Maggie Harris when he took acknowledgment thereto. her leged further Kenneth H. Aynesworth, Jr., was named as trustee in Dollar deed of trust; as- signee of note and liens from J. H. Rat- appellant, cliff, Carlile, A. B. owner of the Nine Hundred holder and liens at time of the institution suit; and further that all *2 they same, alleged pay house and that acts on would or fendants were notice of tile they payments they sought, had known had of tion ry in addi- that the J. H. Ratcliff. tempora- liens, applied made thereon Nine were to to the cancellation of injunctions ($900.00) permanent Hundred Dollar and their note and not ($3000.00) Three Thousand Dollar one. enforcement. “Appellant by general demur- answered special “The case is- was submitted on five general denial, rer and filed and a cross-ac- jury' thereon, (1) sues found against appellees tion re- for the balance built, that Reid and not or Ratcliff had unpaid maining 00) ($900.- the Nine Hundred on (2) question; caused to house note, together Dollar with a foreclosure taking acknowledg- that at the time of securing Appellant of the liens same. al- Maggie Harris Nine ment to this Hundred leged that he was the innocent holder due ($900.00) notary Dollar lien not ex- did maturity, of for value the the and before separate apart amine her band, hus- and from her liens, note and and that if explain her, nor did he nor did thereof, liens were defective he had no notice acknowledge understand and appellees and had ratified same signature deed; (3) and her act and by representation and had their and conduct that sequently and Albert did not sub- estopped validity deny themselves to and the Nine Hundred such liens. ($900.00) by Dollar word' or “Appellees replied John appellant’s N. Snell. to cross-ac- by general denial, plea of failure “Appellant appellees and motions filed liens, by replead- consideration for and favor, enter to in their and allegations original petition ing the by way of defense. of their thereon, hearing the court entered against appellant that he should take noth- ing cross-action, cancelling his behalf the me- “The evidence introduced liens, enjoin- assigned showed that he been the chanic’s and deed of trust and had defendants, ($900.00) ing and liens H. Nine Hundred Dollar note J. Aynesworth; Jr., maturity, H. their full and Kenneth face value before attempting to Hun- enforce Nine without leged by appellees liens; lien, voiding ($900.00) that dred Dollar or sell under the appellees H. dealt with deed of trust. had agreeing to by appellant “A motion was filed ($3900.- pay Thousand Nine Hundred for the house that was Three jury to verdict and to set,aside on 00) erected Dollars grant trial, a new which was' overruled land, that Reid was used their court, and which to action court financing dummy contractor facilitate the appellant excepted gave notice operations, and that cause, peal, before this is now Honor- fully conversant with all the facts were lees review and correction.” able properly Hundred executed On the is in liens, intending contended ($900.00) Dollar substance .note (1) appellant’s pleading that: Under lien to . constitute a second same should proof declaring on and introduc- on Dollar lien Three Thousand —tRat note, together subsequently constructed-; evidence the house testimony bought value, having pay- his had made' several maturity, kfiowledge before without Nine Hundred ments note and would have fáct that made invalid— had told to, issues the ings submitted as well as the find- and after he had before both note of, jury liens, good thereon were it was a immaterir judgment notwithstanding they place al and should and that their lien on same. him, plead- gone for have neither Appellees introduced evidence calcu- proof appellees’ allegations on behalf of fact defend- their lated to sustain defense to so sued that constituted a upon the note ant, induced proved up; pleadings (2) execute said them to Dollar was the them, having raised the issue to wheth- they evidence er or understood that Reid not the the first for the built Snell, appellant’s stance, prede- J. N. caused that same ($3000.00) cost Three ownership thereof, purchase Dollars; they cessor Thousand not along accompanying they with its they signing liens were know the same statements their valid, regular, the Nine executed them, and, binding on lien, explained acknowledgment Harris did not have same second, believe led when the took her to her himself pri- thereto, fact their such to be or nor did she know purchase installment-pay- time, thereof and that contents of maturity, requests any person on the note at ments they told finding es- payment on for a of their whether liens were to secure topped principle have claim should now otherwise that a bona fide given. maturity for value before of a by any equities is not affected conclude, position, should Neither original, parties application me- has sustained; findings chanics’ liens. a lien Such must exist lacking issues submitted are not attached *3 and, assigned, it can be if the conditions support evidence, in here must the hence lacking, are existence takes who regarded moreover, facts; as established assignment paper purporting that upon the the declared- with which assign- a lien is in better no than attitude sup purportedly $900 note and its two or, nothing assign; assign- who had for an porting liens had to the time do was at bring ment cannot into existence that which claimed homestead of execution thereof the * * * being no it made. was wife, appears as husband the undisputed only so, evidence; right mechanic, from the not to the lien in is the laborer, man, only but all three in instruments or material it is expressly laborer, may mechanic, reflect that the sole consideration or material man that contempora perfect lien; therefor the makers was lien the is after the perfected, neous as the contrac of’Ratcliff has been in oth- as the case may furnishing assigned. tor to there material er labor and v. Jenckes 624, Jenckes, the them on such house for home 145 Ind. 44 N. E. who 633. One stead, re purports that a mechanic’s lien takes therefrom; that, compounding sult so lien secured a mechanic’s knows appears jury’s purported security thus otherwise the ver- must arise di¿t, and, statute, claimed, the actual facts lien are that takes Ratcliff performed (the paper charged of his tes with the of all timony undisputedly surrounding in that connection show facts the transaction and, original parties; him $250. that Reid for on the shqw out if such facts papers bore), created, date these the law was not lien he none.” can have complied pretended acknowledg in The note and liens thus null wife, Maggie ments of the to the deed void, they constitute not basis could of trust and mechanic’s any right. did not then she understand she had such, executed them and that neither argument As concerned the for es- husband, by toppel, word or deed with J. a there is difference adopted estoppel, N. thereafter ratified abstract between ratification Juris, p. $900 claimed lien. Corpus in well stated 21 is n 1115, party “In the to be: former case is think, In such circumstances the law we be; lat bound because he intended ter, in un down notwithstanding bound is he pa Ratcliff took der no better title these intention, party no such because the pers other than the latter prejudiced will be con initio, defrauded all void ab because of total failure legally him the law treats duct unless for of consideration conse quent bound.” lack of' foundation for de ^liens n pendent These, thereon. seem, authorities concretely here, But as considered support conclusions; us First legal comprehend- think doctrines Muscogee Campbell, Bank National v. 24 inquiry: given in “Did ed 160, 628, App. 630; Tex. Civ. 58 S. W. Em by word or deed with J. ployers’ Corporation Liability Assurance v. subsequently (Tex. App.) Lumber Civ. Lyon-Gray Co. 29 lien,” “ratify” although $900.00 the word Murphy S.W.(2d) 843; Williams, et al. v. 103 used, answer- 155, 900; Tex. 124 Paschall S. W. v. Pioneer it, “They not,”. necessary effect Co., Savings App. 102, 19 Tex. Civ. adversely found the Constitution, 98; 16, Texas S. art. § 47 estoppel constituting relied an Smith, 50; Childress Tex. v. 90 38 S. against them. W..518, 389; 40 S.‘ W. Revised article trial court’s It follows Harrup .the 1925; Statutes of et al. v. Na Civil tional Loan affirmed; that order has en- should be Detroit, Investment Co. (Tex. tered. Michigan App.) W, Civ. 204 S. n indisputably Affirmed. appeared in It this material stance that no work nor for Rehearing. Motion for On was ever furnished either house himself, Ratcliff authority Upon Meyers of Lozano under con- v. else App. 1929) (Tex. S.W.(2d) 588, 590, tract, assignees, Com. and his immediate he a-nd urges remote, position resulting that our wore thus erroneous, Campbell, did not stated Eirst Bank su- accord Nat. v. .was personal nra: tlie amount of the note he clared on. so, concluding, We do not think obtaining comparison, do not facts there present legal equivalent of those because, reason, if for no other that note had been sold indorsed Thompson, language court, “At Meyers time the Mulhausens and Lattner, Paso, Isaacks & El and R. D. agreement to construct breached their Blaydes, Stockton, appellants. of Ft. whereas, building”; instance the Stockton, Silliman,-of W. B. Ft. very date lees. plainly stipulated note so its sole considera- *4 house, repudi- ated all the i'eturn for thereunder in WALTHALL, J. paid by Reid, who did $250 then Johnson, plaintiff, brought S. C. three suits it. justice court, one each G. This, think, distinguishes eases, two Rose, Gowen, Haskell and R. E. Ellis. Each opinion since former as the recites: justice suits in to was tried court court “All three instruments in severally county appealed pressly reflect that sole consideration to where the three suits were consolidated contemporane- the makers therefor was the In tried judgment against one suit. each asked suit Johnson ous furnishing of Ratcliff the contractor each for the sum defendant county all labor and material to there- $108.13. In the court Johnson re- Ellis, judgment against build the for them on such home- covered Gowen stead.” was rendered in favor Rose. appealed Johnson favor rehearing The motion for has been over- appealed of Rose. Gowen Ellis ruled. and. the are in favor of The facts Johnson. Overruled. as follows: year 1926,Johnson, Ellis, Rose, In the Gow- en, others, and three this con- involved troversy, corporation Up- formed known County Light Company, ton Power an each holding equal of the seven share of the ELLIS al. v. JOHNSON et al. stock, and seven all of the stock hold corporation. April, In the cor- poration entered into a contract sell Court of Civil of Texas. El Paso. assets, except receivable, of its some accounts April 23, 1931. Company, to the West Texas Utilities $250,000, cash consideration May 14, day May day June, last or the first effect, contract into carried $250,000 Upton paid cash to Coun- Company. Light Upton ty &Power Coun- ty Light Company $58,- & Power owed some year 1927, besides the income tax for tax, which amount of the date of the sale, definitely computed either could not be paid. $250,000 When all of the was collected company selling paid indebtedness of the balance, except tax, income and' amounting $192,000 among was distributed stockholders, receiving seven each part. proportionate At time it was among agreed and understood the stockhold- the income tax had been com- ers that when puted each stockholders tax, proportionate part of such income corpo- disposing assets of the After ration, except receivable, accounts some company chang- selling its charter amended Borderland name to Utilities