
    BANKERS LIFE CO. v. JOHN E. QUARLES CO.
    No. 2139—7047.
    Commission of Appeals of Texas, Section A.
    Feb. 9, 1938.
    
      Coker, Rhea & Vickrey, Prentice Wilson, and John B. Poindexter, Jr., all of Dallas, for plaintiff in error.
    Coke & Coke and Thomas G. Murnane, all of Dallas, and Charles Kassel and Melvin F. Adler, both of Fort Worth, for defendant in error.
   GERMAN, Commissioner.

On January 1, 1935, Claude Stevenson, acting for himself individually and as survivor of the community estate of himself and his deceased wife, executed a deed of trust on 85 acres of land in Dallas county, Tex., to secure payment of the sum of $6,-400 with interest. Thereafter John E. Quarles Company furnished materials to Claude Stevenson which were used in the construction of a four-room house on said 85 acres of land. On May 9, 1932, in the district court of Tarrant county John E. Quarles Company obtained judgment against Claude Stevenson for the sum of $696, and foreclosing a constitutional ma-terialman’s lien on the 85 acres of land.

The present suit was instituted in the district court of Dallas county by Bankers Life Company, holder of the $6,400 indebtedness and the deed of trust lien securing the same, as plaintiff, seeking to recover upon said indebtedness and to foreclose the lien on the 85 acres. The suit was against Claude Stevenson, and others not necessary to mention, and also against John E. Quarles Company, which plaintiff alleged was asserting some kind of claim to the land. John E. Quarles Company answered, disclaiming any lien on the land as such, but setting up that by virtue of its judgment in the district court of Tarrant county foreclosing the constitutional material-man’s lien it had a Superior lien on the four-room house situated on the land. It was further alleged that said house could be removed from the land without material damage to same. It prayed that its lien on the house be declared superior to the lien of plaintiff, and that order of sale be issued for sale of the hquse separate from the land. Upon a trial of the present suit judgment was rendered in favor of plaintiff, Bankers Life Company, for the amount of its debt, and for foreclosure of its deed of trust lien on the 85 acres of land, exclusive of the four-room house thereon. In addition, the court found that, by virtue of the former judgment in the district court of Tarrant county establishing the mate-rialman’s lien in favor of John E. Quarles Company, that Company had a superior lien upon the house. The court further decreed that an order of sale issue directing sale of the house separately from the land to satisfy the judgment of John E. Quarles Company, and allowing removal of the house within a reasonable time after the sale.

Bankers Life Company and Claude Stevenson appealed. The judgment of the trial court was reformed as to costs and affirmed by the Court of Civil Appeals. 88 S.W.2d 613. Bankers Life Company alone has prosecuted writ of error. It will be designated plaintiff. John E. Quarles Company will be designated .defendant.

There is in substance but one question presented here for decision. It is in effect this: That defendant having proceeded in the district court of Tarrant County to foreclose its lien on the 85 acres of land, of which the house then was treated as a part, it was error for the district court of Dallas county to allow another foreclosure upon the house only, treating it as personalty, as distinguished from a part of the realty, and to issue order of sale in favor of defendant as to said house. Plaintiff urges in support of this contention election ol remedies, estoppel and res adjudicata.

In the Court o"f Civil Appeals plaintiff, in setting out propositions upon which the appeal was based, did not submit any proposition urging error in the action of the trial court in foreclosing its lien and directing order of sale as to the 85 acres of-land, exclusive of the four-room house. While there was an assignment of error in the back of the brief under which this question might have been raised, the plaintiff did not submit this assignment by proposition, statement, aüthorities, or argument, but expressly limited its right to reversal to the propositions set out in the brief upon which the appeal was based. The action, therefore, of the district court in foreclosing the lien upon the land, exclusive of the house, constituted an adjudication that plaintiff had no lien upon the house. It follows that a sale by virtue of the judgment and under the order of sale as directed will convey no title in the house to the purchaser. Having failed to raise this question in the Court of Civil Appeals, it cannot be raised in this court for the first time.

Defendant was made a party to this suit at the instance of plaintiff. This, must have been upon the theory that defendant was asserting some right to the land or the house in opposition’ to plaintiff’s right. Defendant pleaded its prior judgment establishing a constitutional ma-terialman’s lien upon the 85 acres and upon the house as a part of the realty. It filed a disclaimer as to its lien upon the 85 acres, of land as such, but asserted its lien as to-the house. This necessarily put in issue the question of whether or not plaintiff had any lien upon the house, or at least put in question the issue as to whether its lien was inferior to the lien of defendant. If it had no lien, it occurs to us that it is wholly immaterial, so far as it is concerned, that the court declared a lien upon the house in favor of defendant by virtue of its former judgment. Stevenson has prosecuted, no writ of error, and the judgment of the trial court and the Court of Civil Appeals-establishing lien upon the house in favor of defendant is final as to him. The case therefore reduces itself to a complaint on the part of plaintiff as to the manner in. which the court provided for the removal, of the house from the land. Certainly the court had the right to order the house moved, in order that the judgment in favor of plaintiff foreclosing its lien upon the land could be made effective, by delivery of th.e land to a purchaser free from any in-cumbrance. While technically an order of sale should appropriately come from the-Tarrant county court which rendered the-judgment in favor of defendant, we are-brought face to face with the practical proposition that 'plaintiff cannot in the-least be injured by a removal of .the house-.through the instrumentality of an order of sale, rather than by a decree authorizing-defendant and Stevenson to remove it in. some other manner. As Stevenson is no longer complaining of the action of t-he-court in directing order of sale as to the house, and as plaintiff can in no manner be injured, it is therefore in no position to-complain.

The judgment of the Court of Civil Appeals is affirmed.

Opinion adopted by the Supreme Court.  