Pope v. A. T. Graham & Co.

44 Tex. 196

• Court: Texas Supreme Court
• Decided: July 1, 1875
• Status: Published

Opinion

Gould, Associate Justice.

The contract between appellees and appellant was recorded within six months after the debt growing out of it for materials and labor to erect the house became due ; and there can be no question that Graham & Co. had a mechanics’ lien on the house erected under the contract, to secure the balance due under said contract in so far as it was competent for appellant Pope to give or create such a lien. The homestead rights of Pope could not attach to the house so erected so as to defeat this lien. (Constitution, art. 12, sec. 15 ; Potshuisky v. Krempkan, 26 T., 309.)

If the wife of Pope had any rights in the house by reason of her equitable ownership of the lot on which it was erected, or if her father had any such rights by reason of his legal ownership of said lot, they were neither of them parties to this suit-; their rights were not adjudicated, and will not he affected by the decree or the sale thereunder. It is to be observed that the statute contemplates the enforcement of the mechanics’ lien by the sale and removal of the house or other improvement, and to that extent seems to treat the house or other improvement rather as personal estate than as a part of the realty. (Paschal’s Dig., art. 7114.) Be this as it may, the lien attached to all the rights of defendant Pope in the house, and the rights of no one else therein are before us for adjudication.

It is contended by appellant that the note sued on was a new contract, superseding and abrogating the original building contract, and that it amounted to a waiver of the lien under that contract.

Taking the note of the debtor for his debt does not ordinarily amount to payment or discharge of the indebtedness unless it is so expressed, or appears to have been so intended. (2 Pars, on Cont., 136; The Kimball, 3 Wall., 37; Grant v. Strong, 18 Wall., 623.)

When a lien has attached the taking of a negotiable security for the debt does not of itself operate as a release of the lien. (Grant v. Strong, 18 Wall., 623; Phillips on Mech. Lien, sec. 276, and references.)

Whether a lien is waived or not is “ largely a matter of intention,” and in this case the recitals of the note show affirmatively that the lien is not waived but is intended to be retained. The note served to show the balance due on the contract, and to fix the rate of interest on that balance, leaving the lien still in force. (Phillips on Mech. Lien, sec. 276, and references.)

This conclusion is in accordance with the current of authority in the analogous cases of mortgages and vendors’ liens. (1 Hilliard on Mort., 484, ch. 24, pars. 61-2 ; Id., 307-8, ch. 16, pars. 4, 5, 6, 7.)

The question raised by the charges asked and the assignment of error, and discussed in appellant’s brief, is as to the waiver or extinguishment of the lien as an entirety; and if it should be considered doubtful whether the lien extended to the additional interest, it is sufficient to say that no such, question appears to have been made below or to be now properly before us.

The contract was properly admitted to record without proof or acknowledgment of its execution. (Paschal's Dig., art. 7112.) The statute does not appear to contemplate that such contracts shall be authenticated before being recorded.

It was made an exhibit to the amended petition, and there was no error in admitting it in evidence, nor was it error to allow the record book to be produced in evidence for the purpose of showing more definitely than appeared by the clerk’s certificate on the original instrument the fact and the date of its. record.

The assignment that the court erred in its charge is too general to require notice, and the other assignments of error have been substantially considered in what has already been said.

Affirmed.