Under appellee's application for additional conclusions, and to correct the conclusions already found, we make the following findings:
1. It already appears affirmatively in our original conclusions that the house was occupied by Bigsby and family prior to November 22, 1892.
2. Under the second clause of appellee's motion, it is insisted that the court should not find as a question of fact that the mechanic's lien debt was a claim mentioned and intended to be covered by the deed from Bigsby and wife. Under this point, we set out in our original conclusions the testimony of appellee himself, which was not disputed, and from which it clearly appears that at the time the trade was made "he knew that Bigsby regarded the debt of defendant and its lien on the property as legal and binding." If he bought the property under an agreement to take it subject to all valid liens on record in Hunt County, and this lien was on record in Hunt County, and he knew that his vendor regarded it as a valid lien, and so considered it as a part of the consideration in the trade, he took the property subject thereto. We have set out the facts in the original conclusions, so that we think they can be fully considered.
3. It fully appears from the original conclusions that C.C. Caskey was on the local board of appellant at Greenville, and hence was its agent. We will further add, that the business of appellant at Greenville in receiving applications for loans and in paying out money after the home office had accepted the loan and forwarded the money, was done through its said local board. It fully appears in our original conclusions that no part of the money loaned by appellant to Bigsby and wife was actually used in placing any improvement on the property *Page 228 in controversy, and the material and labor for improvements put there were obtained from other sources. C.C. Caskey knew at the time the contract was entered into that Bigsby and his family lived on the property; he also knew that the unfinished house already placed on the property was put there by the latter from labor and material procured from other sources, and that some of the lumber had been procured from Caskey himself. When the money was procured from the appellant by the indorsement of the $500 note, a part of it was retained by Caskey upon an indebtedness due him from Bigsby, and the former gave no notice whatever to appellant of any fact tending to show the lien to be invalid.
Under the first seven grounds of appellee's motion for rehearing, we deem it sufficient to say that the appellee is in an awkward attitude to claim the invalidity of appellant's lien. It clearly appears from his own testimony that his vendors, Bigsby and wife, regarded the lien as good and valid, and did not interpose any homestead or other claim against it; but on the contrary, after they had moved from the State, they provided in the trade with him, and as a part of the consideration for such trade, that he should take the property subject to all valid liens on record in Hunt County, and he knew that they regarded this as one of such valid liens to which the property was subject. Now he seeks to cancel that lien and hold the property free from it. Bigsby and wife claimed no homestead rights as against this lien. Is he in an attitude to claim such rights when the former had expressly contracted with him and he bought such property subject to the lien?
Under the eighth ground of the motion for rehearing, it is contended that the case should not have been reversed and rendered, because the record shows that Bigsby had paid his monthly installments on his stock in the loan company up to and including May 23, 1893, and that the record fails to show the amount of monthly installments so paid, thus leaving a question of fact to be determined by the trial court. This proposition is not well taken, for the reason that no such issue was made in the pleadings. The petition of appellee sets up the execution of the note and its transfer to appellant and seeks to cancel the lien; the cross bill of appellant sets up the note and lien, and asks for the enforcement of the lien against the property. No question of any credit upon the lien debt was raised by either party. The case should not be remanded for trial upon issues not made by the pleadings.
The questions raised under the ninth ground of the motion are fully discussed in the original opinion. While it is true that appellee did not assume the payment of the debt, yet he did take the property subject to the debt, and by our judgment the debt is enforced against the property in his hands and no further. Beyond this, there is no personal judgment against him. If he had, in his purchase, assumed to pay the debt, this assumption would have authorized a personal judgment against him.
The other questions presented have been fully discussed. We find no *Page 229 reason for changing our views of the case as heretofore expressed, and the motion for rehearing is overruled.
Overruled.
Writ of error refused.