Appellee Bank brought this suit in the district court of Wise county, seeking judgment against appellants Askey and Bewley Mills because of certain promissory notes executed to appellee by Askey, secured by chattel mortgage liens given on Askey’s 1931 and 1932 crops of wheat, which had been stored by Askey with Bewley Mills. Appellee sought judgment on its notes, together with foreclosure of its said liens against both appellants, and, in the alternative, alleged that appellant Bewley Mills had converted said wheat and prayed for judgment for the market value of the same as against Bewley Mills.
*203Appellant Bewley Mills answered, alleging that it had received from Askey certain wheat in the years 1929 and 1930, as well as the wheat mentioned in appel-lee’s pleadings, raised in the years 1931 and 1932, and it claimed to have storage charges and handling charges for all of said four years, and alleged that all of the charges made by it were protected by a lien as against the wheat raised in the years 1931 and 1932, and that its lien was superior to the Bank’s prior chattel mortgage lien. Said appellant also alleged that it had advanced to Askey the sum of $2,-420 on his 1929 crop of wheat, which Askey had paid to appellee Bank, and asserted that this constituted a charge and was protected by a lien against the 1931 and 1932 crop of wheat and was superior to the bank’s chattel mortgage lien. Said appellant also alleged that if its charges, claims, and liens were not superior to the Bank’s chattel mortgage liens, nevertheless such Bank had permitted its lien to be subordinated to those of said appellant by knowing of the storage of the wheat and neglecting to object to the same, thereby consenting thereto, and that the Bank was guilty of laches in failing to sooner enforce its rights, after receiving benefits accruing to its security by virtue of the storage of the same with appellant Bewley Mills.
Said appellant also alleged that the Bank was joint owner of the wheat with Askey and also sole owner of the said wheat, and it sought to charge appellee Bank, as well as appellant Askey, with all- of its charges and claims and asked for a marshaling of the assets and an application of all other securities held by the Bank to the payment of its indebtedness before resort to its security by reason of its chattel mortgages on the wheat, in the event its claims were held inferior to the Bank’s.
Appellee Bank made appropriate reply to such pleadings.
Appellant Askey filed an answer and cross-action, in which he alleged that he had stored the wheat in question with appellant Bewley Mills over a period of several years, and that he had made a settlement with it in October, 1930, whereby he paid off the accrued storage charges and the $2,420 advanced by Bewley Mills to him, and he sought to recover from Bewley Mills the value of the 1931 and 1932 crops of wheat, alleging conversion of same by Bewley Mills.
In such answer and cross-action, Askey asserted that on December 3, 1921, he gave a deed of trust to said Bank on certain described business property located in the city of Decatur, and that at such time this property was his business homestead. That thereafter, in May, 1924, an agreement was entered into by him and said Bank, to the effect that the trustee named in such deed of trust should sell the property under and by virtue of the terms and conditions of the deed of trust, and that the Bank should bid such property in and hold the same in trust for Askey. He asserted that this was done and that his indebtedness to the Bank had been paid, and he prayed for recovery of title to and possession of said real estate, and for a removal of the cloud cast upon his title thereto, by reason of the deed of trust, which he alleged is void, and the. said trustee’s deed.
In answer to such pleadings, the Bank replied, in substance, that under its agreement with Askey he had the right to redeem such property by first paying off all his indebtedness then owing or thereafter incurred, all of which Askey had failed to do. The Bank further alleged that the sale to it by the trustee named in the deed of trust executed to it by Askey was made with Askey’s authority and at his special instance; and further alleged that if the property so conveyed was not intended by Askey to be applied toward the satisfaction of his debts due the Bank, and if said Bank did not acquire the full title to such property by reason of the trustee’s deed, then, in the alternative, the trustee’s deed created a valid and subsisting lien on such property to secure the Bank for all of the debts due it by Askey.
The Bank further alleged that if Askey did not make the deed of trust to it in good faith and for the purposes disclosed by the instrument, then such deed of trust was executed by Askey for the purpose of placing the property conveyed in the deed of trust beyond the reach of one of Askey’s named creditors, who had obtained a judgment against Askey.
The case was tried to a jury, and after all evidence was taken, the court submitted only three issues to the jury. In the first issue the court requested the jury to find whether or not in October, 1930, Askey and Bewley Mills made an agreement whereby said Mills accepted certain *204wheat then in its possession, belonging to Aslcey, in full settlement of all amounts of money owing by Aslcey to said Mills, including the money advanced and all charges incurred in connection with the storage and handling of the wheat. The jury answered this question: “No.”
• In the second issue the jury was required to find whether on December 3, 1921, being the date when Aslcey executed to said Bank the deed of trust in question, the property described in the deed of'trust was used and occupied by Aslcey ás a place to exercise the calling and business of said Aslcey. The jury answered this issue: “Yes.”
■ . Issue No. 3 we quote: “From a preponderance of the evidence what amount of money, if any, do you find would reasonably , compensate Bewley Mills for its charges for storing and handling the wheat in question?” The jury answered: “$1314.-85.”
Neither Aslcey' nor Bewley Mills made any objection to the charge of the court, but Bewley Mills made a motion for an instructed verdict, which was refused.
On receipt of said verdict, the court rendered judgment for appellee Bank against Aslcey in the sum of $21,770.89, with interest and costs, and decreeing a foreclosure of the bank’s equitable lien on the property described in the deed of trust mentioned above, and rendered judgment for said bank against Bewley Mills in the sum of $2857.53, with interest, because of the conversion of the 1931 and 1932 crops df wheat by said Mills, on which said Bank had a prior lien, and decreeing that when such sum was collected from said Mills, same be applied as a credit on the judgment rendered in favor of the Bank against Aslcey. Judgment was rendered in favor of Bewley Mills against Aslcey, in the sum of $5,020.-15, with interest at 8 per cent, on $3,705.-30, and at the rate of 6 per cent, on $1,314.-85 until paid, together with a foreclosure of the Mills’ lien on the 1929 and 1930 crops, of wheat in its possession. The judgment disposes-of all other issues and claims raised by all parties.
Bewley Mills and Aslcey have appealed.
Appellant Bewley Mills presents 33 assignments of error. The first 25 complain of the refusal of the trial court to give 47 specially requested issues presented to the trial court. We find two bills of exception in the transcript covering these proceedings. The first bill of exception complains of the refusal of the court to give said appellants’ issues Nos. 1-a to 6-a, inclusive. The second bill of exception complains of the trial court’s refusal to give appellants’ issues Nos. 2 to 42, inclusive. Consideration of the assignments of error predicated upon the refusal of the court to give all of these special issues which were requested en masse is opposed by the appellee for obvious reasons. It is well settled in this state, and we shall not take time to cite authorities in support thereof, that requested issues must be submitted separately and the refusal thereof preserved by separate bills of exception, with the exception of certain issues that are wholly interdependent, and such instances are comparatively rare.
In the brief before us some of the assignments of error complain of the refusal to give several separate and distinct issues. Some of the issues requested are purely evidentiary; some have no support in the evidence. If one or more of the special issues requested en masse should not be given by the court, then it follows that the refusal of all does not constitute error. Furthermore, the burden of proof is not sought to be placed as to all of the 47 issues requested en masse. Under the decisions we are not authorized to consider the first 25 assignments of error, but an examination of them, in connection with the whole record, discloses that there is no merit in them.
We find then the last eight assignments of error before us.
The twenty-sixth assignment complains of the refusal of the trial court to give the Mills’ requested instructed verdict, on the theory that under the Warehouseman’s Act (Vernon’s Ann.Civ.St. art. 5638 et seq.) the Mills’ lien for its charges was superior to the lien held by the Bank. In the first place, we do not believe the contention is sound, even as against the 1931 and 1932 crops, which were the only crops in which the Bank was interested and on which it had prior chattel mortgage liens; and in the second place, we are certain that all of the claims and charges made by the Mills against Askey for dealings had with Aslcey in 1929 and 1930 could not constitute indebtedness on which the Mills had a lien against Askey’s 1931 and 1932 crops of wheat, and under no circumstances could *205these claims, debts, and liens be held prior to the Bank’s liens on the 1931 and 1932 crops. Furthermore, the Mills sought to recover storage and handling charges against Askey for all the crops raised in the years 1929, 1930, 1931, and 1932, and to have these charges satisfied out of all such crops even as against the asserted rights of the Bank. No effort was made by the Mills to have the jury ascertain the value of such charges for the years 1$29, 1930, 1931, and 1932 separately. The one issue was submitted which was evidently intended to cover the charges for all four years. The judgment of the court conclusively shows that such was the theory on which the cause was submitted.
We have said that the charges made for the storage and handling of the 1929 and 1930 crops could not be rightfully charged to the Bank, and the Mills having made no effort to have the jury separate these charges, covering the crops' raised during the four years in question, there was not and could not be any basis on which the trial court could have rendered judgment against the Bank for the charges covering the years 1931 and 1932, even if it could be successfully contended that the Mills’ lien is superior to the Bank’s; and this we expressly decline to hold.
If there be anything in the contention' made by the Mills, to .the effect that its charges are superior to the Bank’s, it has waived the right to recover because it sought no finding by the jury on which to lay its claim. We find no merit in this assignment of error.
The twenty-seventh assignment complains of a certain argument ’made by counsel for the Bank. When we turn to the bills of exception, we find that counsel for the Mills, when the argument was made, stated the following:
“Mr. Godfrey: We don’t understand counsel’s argument for if he tells the jury they must use their judgment, then, it is against the instruction of the Court. It must be decided on the evidence under the Court’s instructions, on the evidence from the witness stand and on that alone.”
After these observations were made by said counsel, the counsel who made the argument replied:
“Mr. Gettys: It wasn’t my thought the jury would not be bound by the charge of the Court, and decide on some consideration aside from that”
The theory of appellant is that the trial court erred in not instructing the jury not to consider this argument, but no such objection was made as is disclosed by the bill of exception. Furthermore, we find no error in the argument.
The twenty-eighth assignment complains of the trial court’s granting the Bank permission to file a trial amendment after the cause had been submitted to the jury. This trial amendment simply alleged that the chattel mortgages held by the Bank on Askey’s wheat were forthwith filed and registered in the office of the county clerk of Wise county, and that Bewley Mills had notice of the same. The bill of exceptions presenting this question was qualified by the trial judge by the statement that sometime during the trial the attorney for the Bank spoke to the court about filing this trial amendment and that the court indicated to counsel that it was agreeable for same to be filed, and that the court does not know just when it was actually filed, but that same was filed sometime during the trial. The appeal bonds filed by Bewley-Mills and Askey described the judgment as being dated August 22, 1936, long after the date the trial amendment appears to have been filed, while the judgment bears only one date, to wit, July 27, 1936, and the verdict appears to have been filed July 30, 1936. There is quite a bit of con-fusión disclosed by the record, but even if the permission to file the trial amendment were error, all of which we do not hold, in the light of the record as we find it, nevertheless we believe that such, error is harmless and that it was not necessary for the Bank to allege that its chattel mortgages were filed forthwith, but that under the broad allegations made by the Bank, which plainly showed that its mortgages were prior to any liens claimed by the Mills, the issue of whether or not the Bank’s chattel mortgage liens had not been forthwith filed, appears to us to be a matter of defense. The evidence shows that the mortgages were filed forthwith. We do not believe that it was incumbent upon the bank to allege these facts. We find no merit in this assignment of error.
The twenty-ninth assignment complains of the trial court’s rendering judgment without requiring the Bank to look to • all other collateral security held by it before resorting to the grain, on which the Mills and the Bank both had security. We do not believe that the pleadings of the appellant Mills, under the facts disclosed in *206this case, properly called for a marshaling of the assets, and we overrule the assignment of error.
The thirtieth assignment complains of the trial 'court rendering judgment for the Bank against the Mills in the sum of $2,857.53, asserting that there was no legal and sufficient evidence that the market value of the grain on the date of the alleged conversion was the same for which judgment was given. .We gather from the record that the evidence was undisputed on this issue. The classification made by the Mills of the wheat on which the Bank asserts its liens was accepted by the trial court as correct, and the Mills thereby received the benefit of its expert judgment as" to the proper classification of the wheat, all of which it did not seek to repudiate or deny. It could not have been injured by the finding of the trial court that its evidence was conclusive on such issue. The market value of such grades of wheat was likewise undisputed. We find no merit in this assignment of error.
The thirty-first assignment asserts that the trial court erred, in view of the jury’s answer to issue No. 1, in not rendering judgment in favor of the Mills against both Askey and the Bank for the amount of the advancement of $2,420 made by the Mills to Askey long before the 1931 ,and 1932 crops of wheat were planted and harvested, the Mills asserting that its lien for such advancement was prior and superior to that of the Bank on all of the wheat stored with the Mills. To this contention we cannot agree, for reasons heretofore stated. The assignmént is not well taken.
The thirty-second assignment asserts that the trial court erred in not rendering judgment in favor of the Mills and against the Bank and Askey, jointly and severally, for the amount of the advancement mentioned above, on the theory that the evidence conclusively showed that the advancement was made under the authority of the Bank and at its request, and that it received the advancement and benefits thereof. We do not find where this assignment of error has been briefed, and of the thirteen propositions advanced in appellant’s brief, none are asserted to be germane to the. assignment of error, and ^ye take it that it has been abandoned. But should we consider it, we find that it has no support in the record.
The thirty-third assignment complains of the admission in evidence of a letter written by one of the Mills’ agents. We find no error in the admission of this letter in evidence and the assignment of error is overruled.
This brings us to the contentions made by the appellant Askey. His first assignment of error complains that the trial court erred in disregarding the verdict of the jury and in rendering judgment foreclosing the equitable lien on Askey’s real estate because same was Askey’s business homestead. The assignment of error is supported by three propositions. The first asserts that the issue submitted to the jury was a material one, that the jury made a finding thereon, and the judgment of the court should have conformed thereto. The second proposition-asserts that in the absence of a written motion for a judgment, notwithstanding the verdict, the trial court was without lawful authority to disregard the-verdict of the jury and render a judgment inconsistent with and contrary to the verdict of the jury. The third proposition asserts that the deed of trust executed by Askey to the Bank on Askey’s business homestead was absolutely void at the time it was given and was incapable of validation by any verbal agreement for the property to be sold by the trustee to the Bank, even after Askey discontinued using the property as a business homestead; that the bank acquired no valid title to such property.
Any finding made by a jury on an issue which is not controlling may be disregarded by the trial court and furnishes no basis for the contention that a motion should be made for judgment notwithstanding the verdict. Such a situation is here presented to us. See McGee v. Cage (Tex.Civ.App.) 283 S.W. 283; Southland-Greyhound Lines v. Richardson, 126 Tex. 118, 86 S.W.2d 731.
Let us admit for argument’s sake that the deed of trust lien was executed by Askey to the Bank on this business homestead without the joinder and consent of Askey’s wife. Nevertheless the undisputed testimony shows that Askey abandoned the property in question as to all homestead uses long prior to the year 1924, and that in the year 1924 Askey requested the trustee, designated by him in such deed of trust, to sell the property under the authority vested in the trustee in such instrument *207and requested the mortgagee bank to purchase the same at the trustee’s sale. That Askey had the authority to request such trustee to do that which was done at the time and under the circumstances shown in this record, we have no semblance of a doubt. • The principles set forth in the opinion by Mr. Chief Justice Johnson in the case of Weinert et al. v. Cooper et al. (Tex.Civ.App.) 107 S.W.2d 593, and the cases cited in review, support our contention that Askey, having given the deed of trust lien on the premises in question, and having abandoned the same for all homestead purposes, and long after such abandonment having authorized and directed the trustee named in the deed of trust to sell the same under the authority vested in him to the bank, and having directed the bank to purchase the same at such sale, the equitable lien asserted by the bank in such property is by us held to be valid and binding. Here the bank has not contended for the absolute title to the property by virtue of the sale under the trustee’s deed, but only contends for its asserted equitable lien.
The assignment of error is overruled and the judgment of the trial court is affirmed.