Adams & Wickes v. Cook

Bonner, Associate Justice. Gould, one of the defendants below, does not complain of the judgment, this appeal being prosecuted by the other two defendants, Adams & Wickes. So far as the petition of Cook, plaintiff below, sought a personal judgment against defendant Gould, and to enforce the builder’s hen on his interest in the land, and to require that the other defendants, Adams & Wickes, should disclose their claim, so that the respective liens and equities of the parties could be adjusted, it set out a good cause of action; and to this extent the general demurrer of defendants Adams & Wickes was properly overruled. The verdict of the jury was general and in these words: “We, the jury, find six hundred and ninety-nine ($699.00) dollars due the plaintiff, with interest from January 1, 1877, against all the defendants.” - The judgment of the court upon this verdict was that plaintiff Cook recover of the defendant Gould $746.50, amount of the verdict, principal and interest; and as against all the defendants that the lien be enforced on the building and fifty acres of land surrounding the same, and having a front of one hundred yards on the east bank of Leon creek, and running back between parallel lines for quantity. [166] This judgment was not responsive to the verdict. It may be conceded, for the purposes of this opinion, that- Adams & Wickes could not complain that no personal judgment was rendered against them, although the verdict itself would have authorized it. Under the case as made by the record, plaintiff Cook, as against Adams & Wickes, was not entitled to a lien by virtue of a contract, and both the pleadings and evidence were quite meager to entitle him to a lien against them by estoppel. ¡Neither the pleadings, however, nor the verdict, authorized a judgment for a lien upon the particular land against which it was enforced. The fifty acres of land against which the lien was sought was described in the petition as that “surrounding and including” the building. It was described in exhibit A, made a part of the petition, and which was the description required by the statute to be filed in the office of the county clerk to fix and secure the lien, as “fifty acres fronting on Leon creek, in a square shape.” The description contained in the judgment was wholly different; and it may be added that neither was very definite. Again, whether a lien existed on any land as against defendants Adams & Wickes was a disputed question of fact, and the real issue as between them and plaintiff Cook, and the jury should have been required to respond to that issue. Not having done so, the court should not have enforced the lien, even had the description of the land in the judgment corresponded to that in the pleadings. May v. Taylor, 22 Tex., 348; Bledsoe v. Wills, 22 Tex., 650; Preston v. Breedlove, 45 Tex., 41. For the errors above indicated the judgment below as against defendants Adams & Wickes is reversed and the cause remanded. ¡Reversed and remanded. [Opinion delivered May 3, 1881.]