Kallman v. Ludenecker , 9 Tex. Civ. App. 182 ( 1894 )

Appellant instituted this suit against B. Ludenecker and his wife, Anna Ludenecker, and her children by a former husband, upon certain notes executed by F. Venghaus, the deceased husband and father, and alleged to be secured by a vendor's lien on a certain tract of land, shown by the testimony to have been the homestead of F. Venghaus and his wife at the time of the accrual of the rights asserted by appellant. No personal judgment against appellees was sought, appellant asking only for a sale of the land to pay his demand. The case was tried before the court without a jury, and conclusions of law and fact were filed. The conclusions of fact — except the statement that Paul Pieper, the holder of the real vendor's lien notes, left Milam County in 1884 or 1885 — are supported by the evidence, and, with that exception, are adopted by this court. In view of other facts, the exception noted is not material.

Neither the notes in suit nor the one in renewal of which they were given were for the original purchase money of the land. The evidence shows, that F. Venghaus was indebted for his homestead upon vendor's lien notes in an amount exceeding $300; that he borrowed $300 from one George Stallman and gave his note therefor, reciting a vendor's lien on said land; that it was stipulated and agreed between said F. Venghaus and Stallman at the time said loan was made that said $300 was to be used in paying off the pre-existing vendor's lien on said land; but that in fact it was not so used, but was applied to the payment of another and different debt. Such application, however, was without the knowledge or consent of Stallman. That the notes sued on were given in renewal of the $300 note to Stallman, and were, before maturity and for a valuable consideration, transferred to appellant. It was also shown, that the original purchase money notes had been paid by said F. Venghaus. On these facts, and the showing as herein before stated, that the land was the homestead of F. Venghaus and his family, the court below held that appellant had no lien on the land, and rendered judgment for the defendants; and in our opinion said ruling and judgment are correct. In many instances in this State persons who have furnished money to be used — and which was so used — to discharge vendor's liens, have been subrogated to the rights of the original lien holders, even as against homestead rights. Hicks v. Morris, 57 Tex. 658; Wahrmund v. Merritt, 60 Tex. 24; Eylar v. Eylar, 60 Tex. 315 [60 Tex. 315]; Pridgen v. Warn, 79 Tex. 588. But in all such cases that have come under our observation, the money loaned was applied to the satisfaction of the original lien. In fact, the doctrine of subrogation in such cases rests upon the fact that the money furnished by the lender has been used to pay for the land; and unless it has been so used there can be no subrogation.

The only other grounds for asserting a lien in appellant's favor, are contract and estoppel. By the express terms of the Constitution, there can be no contract lien upon the homestead, "except for the purchase money therefor or improvements made thereon" (Constitution, article 16, section 50); and therefore, the money involved in this case not having been applied as a payment for the land, nor for improvements thereon, the asserted contract lien is stricken down by the Constitution. If Venghaus' homestead rights had been separate and apart or severable from the homestead rights of his wife, possibly his conduct may have been such as to estop him, and those claiming under him, from denying the existence of appellant's asserted lien; but as, under our Constitution, the homestead is protected for the benefit of the family, we are satisfied that a married man can not by his own conduct, unparticipated in by his wife, create a lien upon his homestead by conduct which otherwise would operate as an estoppel in pais against him. If the husband could create a valid lien on the homestead by a mere promise of agreement to apply borrowed money to the payment of a pre-existing lien, without in fact making such application, he could thus indirectly do that which, under the Constitution, he and his wife together can not do directly — incumber the homestead for other than purchase money or money used for its improvement.

The judgment under consideration is affirmed.

Affirmed.