Grant v. Alonzo

27 S.W.2d 871

• Court: Court of Appeals of Texas
• Decided: February 19, 1930
• Docket: No. 8361.
• Status: Published

Opinions

COBBS, J.

Defendant in error sued plaintiffs in error to recover the title to and possession of a garage on Lot No. 3 in block. No. 71-A, in the city of Brownsville, Tex.

Substantially the facts are as follows: Albert Hill and wife, on the 3d day of April, 1926, entered into a written contract with R. H. Milton, who was to build a two-story residence and garage on said lot No. 3. The building was erected according to the plans and specifications, and accepted by Albert Hill and his wife, who executed a deed of trust for the benefit of R. H. Milton, conveying said lot No. 3, in block No. 71-A, and the improvements placed thereon by him, to W. G. McGarr, trustee. The deed of trust covered any improvements thereupon or to be placed thereupon.

In September, 1927, Dora Alonzo erected a building on said lot, consisting of a garage below and a residence above. Dora Alonzo had the oral permission of her daughter, Guadalupe Alonzo Hill, to erect said garage on said lot, but not of the husband, Albert Hill, for he was in the hospital at the time.

On April 16, 1928, the property was sold under the deed of trust to enforce the payment of the mechanic’s lien notes, which Albert Hill and wife had not paid, and the property was bought in by John F. Grant.

On May 1, 1928, Dora Alonzo attempted to remove the said garage from the lot, and was prevented by John F. Grant, and she then brought this suit for the possession of the garage and for damages.

The case was tried without a jury, and the court, after hearing the evidence, rendered judgment for her.

The property was community property, and the claim was based upon the oral permission given her to erect the garage on the lot, and the right to remove the same therefrom. There was no written contract, nor any registration of any contract or permission, to give notice thereof, and Grant had no knowledge of such agreement when he purchased the property at foreclosure sale other than such notice that possession gave.

This improvement was in the nature of a fixture and built to and upon the ground, and, if it was a chattel, as claimed, there was nothing to give Grant notice that it was erected with the understanding that it could or should be removed therefrom.

We think the improvement was a quasi permanent one, and, if not, it was covered by the deed of trust, and became subject to the lien in the deed of trust and passed to Grant by the alleged sale. Fullenwider v. Longmoor, 73 Tex. 480, 11 S. W. 500; Lippencott v. York, 86 Tex. 276, 24 S. W. 275; Denison Lumber Co. v. Milburn (Tex. Civ. App.) 107 S. W. 1161.

We- have not undertaken to discuss the question of permanent fixture as being involved in this case. It is clear it was a home in which the party resided, and ostensibly, as it stood on the premises, it appeared to be a permanent fixture. As it stood, it was an improvement thereon, and was covered by the deed of trust.

We think the judgment of the trial court was erroneous, and it is hereby reversed, and judgment is rendered for plaintiff in error.