On Rehearing.
In the tenth paragraph of appellees’ motion -for rehearing, the following language' from the' opinion is quoted, to wit: “On February 20, 1930, by an instrument in writing duly signed and acknowledged, J. W. Wofford transferred the mechanic’s lien contract, previously mentioned, to the United Savings Rank of Detroit; and on the same day (although dated February 1st) Frazier and wife executed a deed in trust * * *Appellees criticize this lan*940guage, stating that there is no evidence that the deed of trust was executed by Frazier and wife on February 20th, or on any date other than that specifically stated in said instrument — that is, on February 1st.
Our finding that the instrument was executed on February 20th was for the reason that it was not acknowledged until that date, as is apparent from the certificate of the notary. It cannot be correctly said that an instrument, required to be acknowledged by a married woman, is executed until acknowledged by her; the acknowledgment and not the signature gives validity to such an instrument. 1 Tex.Jur. 518, 519, § 115.
In the eleventh paragraph, appellees insist that the preponderance of the evidence is to the effect that Wofford abandoned the contract, and that the trial court so found; therefore we are requested to make a finding to the same effect. With reference to this matter, we think the opinion sufficiently full. We made no finding contradicting that made by the trial judge, but held that, under the facts and circumstances, even if Wofford did abandon the contract, appellees were estopped to deny the validity of the mechanic’s lien.
Referring to the contention set forth in the twelfth paragraph, we did not find that Mrs. Frazier endorsed the check in question. While the preponderance of the evidence is to the effect that she did, yet she testified that she did not; but, for reasons fully stated in the original opinion, we think it wholly immaterial whether she did or did not sign the check. The check bore the endorsement of her husband and, as manager of the community, he had the right to collect and disburse the same.
In the original opinion (116 S.W.2d 938) we stated: “When the check sent by McKee was received by Roberts, the American National Bank at Terrell was in possession of the mechanic’s lien note for $5,500 executed by Frazier and wife to Wofford, evidently placed with the bank by Wofford, as collateral to better secure Frazier’s notes held by the bank * * *.” This finding is criticized in the thirteenth paragraph of appellees’ motion for rehearing, the contention being that there is no evidence that the note was placed in the bank by Wof-ford, and that the trial court found that it was not; hence we are requested to correct this finding and state that the note was not placed by Wofford with the Terrell bank, as collateral.to secure Frazier’s note. The record fails to disclose that the trial court made any such finding, and we are of opinion that the circumstances fully support our conclusion ' as announced in the original opinion. Mr. Boyd testified that Wofford said he was going to borrow money on the mechanic’s lien contract, that when the check for $5500 was sent to close the loan the mechanic’s lien note was held by the bank; that it was necessary to pay the bank to get possession of the lien note; and that witness understood Wofford had put the note up with the bank as collateral. The note was payable to Wofford, he alone had the right to handle it, it later was found in the bank, unexplained, except that it was held at the time the bank held Frazier’s notes. Wofford did not testify and the testimony of Boyd is not contradicted.
So we think the circumstances show that the note found its way to the bank through the instrumentality of Wofford, to whom, ostensibly, it belonged and was held in connection with the Frazier ’ notes. Among other concluding acts, Wofford asserted control by endorsing the lien note on its being delivered by the bank to appellant.
We have duly considered all grounds alleged by appellees for rehearing, and, finding same without merit, the motion is overruled.
Overruled.