CAMERON COUNTY LUMBER CO. v. AL & LLOYD PARKER, Inc., et al. (DAVIS, Intervener), 62 S.W.2d 63

PIERSON, Justice. Cameron County Lumber Company, as plaintiff, sued J. H. Schulgen and wife, Edna E. Schulgen; Mrs. S. P. Quarles, a widow; G. O. Walk; Al & Lloyd Parker, Inc., a private corporation; the A1 Parker Securities Company, a private corporation; and Mrs. Davis Jarrell, joined pro forma by her husband, G. J. Jarrell, as defendants, and sought a judgment on 'a certain note signed by J. H.

Schulgen and wife and Al & Lloyd Parker, Inc., and a foreclosure of its mechanic’s and materialman’s lien on the building to build which the material was furnished to the Schulgens, and on the lot upon which the building was erected. Rebecca A. Davis, a feme sole, was intervener, and sought judgment on certain vendor’s lien notes held by her and a foreclosure of her vendor’s lien on the same premises, which notes and lien were prior in point of time to the note and mechanic’s and materialman’s lien held by plaintiff. A1 Parker Securities Company was sued as a defendant.

It owned certain vendor’s lien notes against the property involved, but did not ask for a judgment on its notes or for a foreclosure of its vendor’s lien. It prayed that its vendor’s lien be protected, and that if the property was sold, such sale be without prejudice to its vendor’s lien. ⅜ The honorable district court of Cameron county awarded judgment, in so far as pertinent to the inquiry here, as follows: It gave Cameron County Lumber Company judgment for its debt and a foreclosure of its mechanic’s and materialman’s lien upon the building and the lot of land upon which the building was located, as against J.

H. Schul-. gen and wife, Edna B. Schulgen, and against A1 & Lloyd Parker, Inc., as surety on the note of J. H. Schulgen and wife to the lumber company. It gave intervener, Rebecca A. Davis, judgment for the amount of her notes secured by a vendor’s lien on the lot. The judgment proyided that Cameron County Lumber Company should have a foreclosure of its mechanic’s and materialman’s lien, but that same was inferior to the vendor’s liens held by the A1 Parker Securities Company and Rebecca A. Davis.

It ordered a sale of the property, and provided that same should not affect or impair the lien held by the A1 Parker Securities Company. It is admitted by all parties that the house built on the lot upon which the mechanic’s and materialman’s lien rested could not be removed from the premises without serious injury and damage to the house and the lot. We deem a further statement of the ease unnecessary for the purposes of this opinion.

The Honorable Court of Civil Appeals affirmed the judgment of the honorable district court, except in respect to the judgment against Al & Lloyd Parker, Inc., as surety upon the note. 56 S.W.(2d) 256. We approve this holding. The writ of error was granted by this court on the question of priority of liens.

The second assignment of error in plaintiff in error’s petition is as follows: “The Honorable Court of Civil Appeals erred in refusing to enter judgment requiring the entire property to be sold and prorated between the Lumber Company in proportion to the value of the building and to the holders of the vendor’s liens in proportion to the value of the land, since the value(

s) of the building and the land were established separately and the overwhelming weight of the evidence showed that the building could not be removed without destroying its value.” In the case of Henry Hammam v. H. J. McMullen & Co. (Tex. Sup.) 62 S.W.(2d) 59, this day decided, which presented facts similar to the facts in this case, this court held that the prior vendor’s lien was superior to and entitled to priority over a later acquired mechanic’s lien. Eor a full discussion of the question see .that opinion. Upon the facts of this case and the holdings in the case above referred to. we affirm the judgment of the Court of Civil Appeals.