This suit was brought by the appellee R.H. Barker against appellant, the Interstate Building and Loan Association, and C.E. Beach, to restrain the latter, as trustee, from selling their homestead under a certain deed of trust made by Barker and wife to secure the association in the payment of $1000, and to declare said instrument and certain others purporting to be liens on his homestead void. M.E. Barker, the wife of R.H. Barker, was subsequently, at the instance of the association, made a party plaintiff, and she joined in the prayer of her husband.
The building and loan association answered by a general denial, and specially, that it took an assignment of a mechanic's lien on the premises made by Barker and wife to one A.H. Briant, signed and acknowledged by them in accordance with law; that it took such assignment for a valuable consideration, in good faith, without notice of any fact that would tend to vitiate such lien; and that the deed of trust was executed to secure the money advanced by Barker to enable him to take up such lien. It then asked judgment for the money so paid Barker, and for the enforcement of its alleged lien on the property.
The appellees, by a supplemental petition, pleaded usury, part payment of the debt, and that on the 3d day of March, 1896, appellant advertised and sold the property under the deed of trust given to secure the debt, and that it was bid off and sold to one S.R. Beloate for the sum of $525, and that thereby said debt was fully paid off and discharged.
The cause was tried by the court, without a jury, who found "that the real estate involved in this suit was the homestead of plaintiff at the time it was attempted to incumber the same by a mechanic's lien and deed of trust, and that said lien was only pretended, and an attempt to incumber said homestead illegally." It then entered a decree canceling and holding for naught said pretended lien and deed of trust, and removing them as a cloud from appellee's title. It also found "that the contract was not usurious, and that R.H. Barker was due the appellant thereon the sum of $466.44," for which it entered judgment against the former in favor of the latter.
From the decree of cancelation the association has appealed. The appellee R.H. Barker complains also of the judgment against him, and has assigned cross-assignments of error.
The appellant in its brief has ignored the rule which requires "a statement of all the material facts proven upon the trial, in so far as they bear upon the issues to be presented," etc.; and we will therefore not state them in our conclusions, but will content ourselves by saying that an examination of the statement of facts found in the record fully sustains the findings of the court copied in our statement of the case, which we adopt as our own; with the additional conclusions that the appellant, through its agents, was fully apprised of the fact that the property was *Page 679 appellee's homestead, and that no mechanic's lien, or lien of any character, existed upon it when it loaned Barker the money, and that appellant, through its agents, concocted the pretended mechanic's lien for the purpose of defeating the Constitution and law inhibiting liens upon homesteads.
Our conclusions of law will be as brief as those of fact. A lien that has no existence can not be enforced. Evidence that shows a paper which purports to be a lien on a homestead to be simulated and fraudulent, is admissible for the purpose of showing that the pretended lien does not exist. Hence the court did not err in admitting such evidence, nor in holding that appellees were not estopped from proving facts which invalidated the pretended lien.
In regard to appellee's cross-assignment, we will say that he can not escape the payment of a debt by showing that his property was bid for at an absolutely void sale, when nothing was paid to anyone on the bid.
There is no error in the judgment of the lower court, and it is affirmed.
Affirmed.