Schneider v. Delwood Center, Inc.

On motion for rehearing

We expressed doubt in our opinion as to which bank account reference was made by appellants’ inquiry, “By what right did Plaintiff take over the bank account pledged to discharge these liens?” This doubt is removed, appellants stating that it refers to the May 21,1964, contract between Delwood and Hall. Since there is no showing that the $27,000.00 escrow deposit was made or, if made, that Delwood received any portion of it, under the April 29, 1964, agreement, we make unconditional our previous conditional ruling on this point.

Appellants make a very appealing argument based on Summerville v. King, 98 Tex. 332, 83 S.W. 680, in support of their contention that their liens should be superior to the rights of appellee insofar as improvements which may be removed without injury to the land or permanent improvements are concerned. This argument appeals because it, if applied, prevents unjust enrichment of a lessor under circumstances present here.

In Summerville the Court discussed present Art. 5459 which gives preference to certain liens for improvements over prior liens, encumbrances and mortgages against the land on which the improvements are placed. It is solely because of this statute that this *679result is achieved. Hammann v. H. J. McMullen & Co., 122 Tex. 476, 62 S.W.2d 59.

There is no similar statute subordinating the rights of lessors to those who contract with lessees. We do not consider Summerville as overruling or being inconsistent with Penfield v. Harris, cited in our opinion.

The motion is overruled.

Motion overruled.