Adcock v. National Loan & Investment Co.

On Motion for Rehearing.

In this case the jury found that the Dodson mechanic’s lien contract was “simulated.” The manner of submission of this question was vague and indefinite, and emphasis was placed by appellant originally upon this as a finding that it was in fraud of the wife’s homestead rights. As originally pointed out, this purported lien was executed by the husband on vacant property, while the family occupied another place as a home. We adhere to our original view that she had no homestead interest in the Ellwood lot at that time. It therefore couldn’t have been in fraud of a right she didn’t possess. It is now vigorously insisted that it was void as to the husband also; that there was no consideration for same; that Dodson worked only as a laborer and was paid for his services by appellant; that such contract was not signed by Dodson and no proof was made that he ever accepted same or acted under it, or that it ever became a binding contract as to him, and therefore no mechanic’s lien was legally created by it. Admitting all this, Adcock’s acts with and representations to appellee estopped both him and his wife, under well-settled rules, to raise any such questions. Application for a loan and an affidavit of completion and acceptance w_ere made and filed with appellee by Adcock prior to procuring the loan in question. In part these stipulated:

“Is the property incumbered in any way by mortgage or mechanic’s liens, unpaid taxes, judgment, suits pending, or liens of any kind? If so, state the nature, date, maturity and amount of incumbrances and held by whom. (Answer fully.)
“$2500.00 m/1 note dated February 1st, 1928, due in forty days from date payable to T. H. Dodson, contractor.
“Is the above mentioned lien,, which you seek to have said company purchase and extend, a good and valid lien? Yes. * * *
“All representations herein are strictly true, and are made as a basis of credit and to secure the loan applied for. * * *
“The said mechanic’s lien and note were given in part payment for improvements *533to be made on said described land, costing’ $2800.00.
“Affiants further say that said improvements have been made in accordance with the plans and specifications, and that the same have been accepted and approved by them.
“Also at the same time personally appeared T. H. Dodson, contractor named in the above described lien, who after being by me duly sworn, says on oath that the above and foregoing statements are true, and that all bills for material and labor used in said premises have been paid.”

Other statements of similar character were made. We quote:

“As a rule, the law regards the husband as the hea’d of the family, and accords him the authority to select the home for the family. Schulz v. L. E. Whitman & Co., 119 Tex. 211, 27 S.W. (2d) 1093. It necessarily follows, then, that, while the place selected is being prepared for use as a home, the homestead character of the place depends on his intention alone. The concurring intention of his wife is not required, and has no force to sustain the homestead character of the place. Steves v. Smith, 49 Tex.Civ.App. 126, 107 S.W. 141 (writ refused). Whatever homestead claim she could be said to have, in such a case, would be founded on the intention of her husband to put the place to use as the family home. If he were to abandon such intention, or become estopped by his acts from asserting same, fhe indispensable support for her homestead claim, as' well as his, would be gone. His actions in the last-mentioned respect could not operate as a fraud on her, for the reason that the place would not have become a homestead in fact, by use for the purposes of a home as the Constitution (article 16, § 51) prescribes, and she would have no independent rights to be affected. The circumstance that the proceeds of the sale of a former home were involved would be beside the question.” Skiles v. Shropshire et al., 124 Tex. 462, 77 S.W. (2d) 872, at page 873,

Mention is made of the fact that the note was past-due when transferred to appellee. This was immaterial. “It makes no difference that the first of the two vendor’s liens was in fact mature at the time defendants in error induced plaintiff to take it up, for the doctrine that a purchaser after maturity takes subject to all defenses applies only to cases where the facts do not create an estoppel. Farmers’ State Bank v. Welch (Tex.Civ.App.) 279 S.W. 481; Bernstein v. Hibbs (Tex.Civ. App.) 284 S.W. 234; Heidenheimer v. Stewart, 65 Tex. 321.” Little v. Shields (Tex.Com.App.) 63 S.W.(2d) 363, at page 366.

Our original opinion of affirmance was based in part upon the hypothesis that a portion of the Dodson debt remained unpaid at the time of the sale of appellant’s property. This, appellant vigorously denies. After much time spent in going through an extremely complicated record, bristling with figures, we have been unable to come to a conclusion upon this question that completely satisfies us. Ap-pellee’s reply to appellant’s contention contains a calculation designed to show conclusively the correctness of our original view, but we are unable to verify the figures given by it from the record. Appel-lee states: “The witness Todd, an officer of the appellee company, testified without dispute, that only five payments of Eighty Two and 06/100 ’ ($82.06) Dollars each, or a total of Four Hundred and 30/100 ($400.30) Dollars was paid by the appellant after the execution of the renewal and extension agreement. Deducting this amount of Four Hundred and 30/100. ($400.30) Dollars from Eight Hundred Eighty Three and 81/100 ($883.81) Dollars, leaves Four Hundred Eighty Three and 51/100 ($483.51) Dollars, as being due at the time the trustee’s sale was held.”

We cannot find where Todd made any such statement and no reference is given by appellee to any page, where same may be found. We are not required to audit complicated accounts, and freely confess our inability to do so. Obviously a court should not deprive any litigant of a claimed legal right without being able to demonstrate the correctness of its position, at least to its own satisfaction. After as earnest an effort to do this as we are capable of, we have failed, and therefore are of the opinion that this case should be reversed and remanded for a 'finding upon this question.

Motion for rehearing granted, and case reversed and remanded.