
    GLENN v. SHAMBURGER et al.
    (No. 1939.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 5, 1922.
    Rehearing Denied May 5, 1922.)
    1. Homestead ©=>96 — Vendor’s lien not prejudiced by subsequent establishment of homestead by vendee.
    A vendor’s lien is not prejudiced by the subsequent establishment of a homestead thereon by the vendee, and where land was purchased, and a vendor’s lien retained, no homestead right can be asserted by either the vendee or one claiming through him against the vendor’s suit for unpaid purchase money.
    2. Fixtures ©=>21 — Permanent home erected on land becomes part of realty.
    "Where the vendee, under an executory land contract in which the vendor retained his lien, erected a house as a home and occupied it for over a year, it became a p^rt of the realty.
    3. Fixtures ©=321 — Right of vendee in possession under executory purchase contract to erect house as property separate from freehold stated.
    A vendee in possession under an executory purchase contract has no right to erect a building on the premises as property separate from the freehold, and the intention to do so, no matter how clearly manifested, is of no avail, without an agreement with the vendor that it shall not become a part of the realty.
    4. Fixtures ©=>29 — Severance by act of God did not change character of house as fixture.
    "Where a house erected by a vendee under an executory contract became a fixture and. part of the realty, and no agreement was shown whereby it should remain personalty, a severance of the house from the realty by a storm in no way changed its character as a fixture, and a mortgage to a materialman after the severance did not defeat the vendor’s right to include the house in his lien.
    5. Exemptions ©=>57 — Proceeds from exempted property destroyed also exempt.
    The involuntary destruction of exempt property by fire does not deprive the owner of his right to collect the insurance as also exempt.
    6. Fixtures ©=>29 — Retain status, notwithstanding detachment by flood, fire, or storm.
    When personal property has once become attached to real estate in such manner as that it cannot be classed as a removable fixture, it retains its status as realty, notwithstanding its detachment or partial destruction by flood, fire, or storm.
    Appeal from District Court", Collingsworth County; J. A. Nabers, Judge.
    Suit by Bob Glenn against J. H. Steelman on notes retaining a vendor’s lien, in which C. D. Shamburger was made a party defendant and filed a cross-action against Steelman. Prom a judgment of foreclosure of a vendor’s lien, but denying a foreclosure as to the
    house, and a judgment of foreclosure for C. D. Shamburger of a chattel mortgage lien upon the house, plaintiff appeals.
    Reversed and remanded.
    Cocke & Gribble, of Wellington, for appellant.
    R. H. Templeton and R. Q. Murphree, both of Wellington, and Jos. H. Aynesworth and Mathis & Caldwell, all of Wichita Pall.?., for appellees.
   HALL, J.

The appellant, Glenn, filed this suit to recover the amount of. six promissory notes, retaining á vendor’s lien upon a half section of land in Collingsworth county. The notes were executed by J. H. Steelman on November 4, 1919, and due January 1, 1921, 1922, 1923, 1924, 1925, and 1926, thereafter, respectively. The notes aggregated $3,214, provided for interest from date at 8 per cent., and contained the usual stipulation for attorney’s fees, together with the acceleration clause. He alleged that the notes were executed in part payment for the half section of land, and prayed for judgment for the amount of the notes and foreclosure of the lien. C. D. Shamburgqr was made a party defendant, alleging' that he claimed some interest in the premises. Shamburger, by a cross-action" against Steelman, sought to recover upon a certain promissory nóte executed November 23, 1920, by the said Steelman, in the sum of $1,690.65. He alleged that this note was due for lumber and material furnished by him to Steelman for the erection of a nine-room house upon the land in controversy, that it was secured by deed of trust lien upon the land, and that later, on the 5th day of July, 1921, Steelman and wife executed a chattel mortgage upon the said house to secure said note. . He prayed for judgment and for foreclosure of his deed of trust and chattel mortgage liens. Steel-man answered, admitting the execution and delivery of the notes sued on by both parties, as well as the deed of trust and chattel mortgage, and acknowledged the existence of the vendor’s lien, and pleaded that the land and house constituted his homestead. By supplemental petition Glenn denied the existence of any lien in favor of Shamburger, alleged that the house was a part of the realty, and together with the lien constituted the homestead of Steelman.

■ The ease was tried to a jury, whose findings are in effect as follows: That Sham-burger’s agent and Steelman did not, as an inducement for the latter to execute the chattel mortgage, agree that Shamburger should look alone to the foreclosure on the house for payment of the Shamburgfer note. Second, that the house was severed from the land: that is, it was not attached to it at the time the chattel mortgage to Shamburger was executed. That Shamburger did not agree with Steelman to accept the deed of trust and look alone to the property for the payment of his debt. Based upon this, verdict, the court rendered judgment in favor of Glenn for the full amount of his notes, principal, interest, and attorney’s fees, and a foreclosure of the vendor’s lien upon the land, but denying him a foreclosure as_ to the house. There was further a judgment in favor of Shamburger for the amount of his debt, and a foreclosure in his favor of the^ chattel mortgage lien upon the house. Under appropriate assignments and propositions the findings and judgment are attacked from many angies, which it will not be necessary for us to consider in detail. It appears from the evidence that, after Steelman purchased the half section of land, he purchased lumber and other building material from Shamburger and constructed the house in question upon it; that he occupied it as a home for more than a year; that the house was completed some time in the early part of the year 1920, and that on November 23, 1920, Steelman, without being joined by his wife, executed a deed of trust to secure his note given to Shamburger for the lumber and building material.

It is not claimed that there was ever any agreement between Shamburger and Steel-man that a materialman’s lien should be fixed upon the premises and improvements under the statutes providing for such liens. This deed of trust was duly recorded. Later, on or about the 4th day of April, 1921, a storm blew the house from the foundation, and left it about 100 feet from where it originally stood, but still upon the premises in question. On July 5, 1921, Steelman and wife executed a chattel mortgage in regular form upon the house as additional security for their note due Shamburger, and this was filed on August 5, 1921. • It is settled law that the vendor’s lien is not prejudiced by the subsequent establishment of a homestead thereon by the vendee, and no homestead right can be asserted either by Steelman or any one claiming through or under him against Glenn's suit for unpaid purchase money. Quinn v. Dickinson (Tex. Civ. App.) 146 S. W. 993; Evans v. Marlow (Tex. Civ. App.) 149 S. W. 347; Jackson v. Bradshaw, 24 Tex. Civ. App. 30, 57 S. W. 878; Id., 28 Tex. Civ. App. 394, 67 S. W. 438.

When Steelman erected the house, it was with the evident purpose and intent of making it his home. The evidence shows that he occupied it as such for over a year, impressing it with the homestead character before the chattel mortgage was executed. It was a nine-room house, and Was intended to be a permanent improvement. Under the uncontroverted facts it must be treated as a part of the realty. Watson v. Markham, 33 Tex. Civ. App. 476, 77 S. W. 660; Van Valkenburgh v. Ford (Tex. Civ. App.) 207 S. W. 405; Id. (Tex. Com. App.) 228 S. W. 194; Boyd v. Hurd (Tex. Civ. App.) 207 S. W. 339; Murray Co. v. Jacksboro O. & M. Co. (Tex. Civ. App.) 205 S. W. 517. The general rule in such cases is thus stated in 11 R. C. L. 1084, par. 27:

“A vendee, in possession of land under an executory contract of purchase, has no right to erect a building on the premises as property, separate and distinct from the freehold, and an intention to do so, no matter how clearly manifested, is of no avail without an agreement, express or implied, with the landowner that it shall not- become part of the realty. This must be so where the vendee fails to fulfill the contract and acquire title.”

According to the test provided in O’Neil v. Quilter (Tex. Sup.) 234 S. W. 528, and in Jones v. Bull, 85 Tex. 136, 19 S. W. 1031, adopted from Hutchins v. Masterson, 46 Tex. 554, 26 Am. Rep. 286, the house became a fixture and a part of the realty. No agreement was shown between any of the parties whereby the lumber and other material furnished by Shamburger, or the house itself, should remain personalty and not become a part of the land. The chattel mortgage, as stated, was executed, attempting to convey the house, more than three months after a storm had blown it from its foundation ; but the evidence further shows that it had been raised, placed upon the new foundation, and repaired, and was occupied by Steelman and his family up to the time of the trial. This was a severance by the act of God, and in no way changed the character of the house as a fixture. Rogers v. Gilinger, 30 Pa. 185, 72 Am. Dec. 694; Patton v. Moore, 16 W. Va. 428, 37 Am. Rep. 789.

It is the rule in this state that the involuntary destruction of exempt property by fire does not deprive the owner of his right to collect the insurance as also exempt. Chase v. Swayne, 88 Tex. 218, 30 S. W. 1049, 53 Am. St. Rep. 742. According to the weight of authority, when personal property has once become attached to real estate, in Such manner as that it cannot be classed as removable fixtures, it retains its status as realty, notwithstanding its detachment or partial destruction by flood, fire, or storm. Guernsey v. Phinizy, 113 Ga. 898, 39 S. E. 402, 84 Am. St. Rep. 270; Goddard v. Bolster, 6 Greenl. (6 Me.) 427, 20 Am. Dec. 320; Leidy v. Proctor, 97 Pa. 486.

It is insisted that under the case of Land Mortgage Bank v. Quanah Hotel Co., 89 Tex. 332, 34 S. W. 730, the chattel mortgage and deed of trust given to Shamburger should be held as superior liens upon the building. In our opinion that case had no application, since it appears that the materialmen had acquired a statutory lien by strict compliance with all the requirements of the statute, and they were allowed to participate with the holder of the lien upon the land only in virtue of the peculiar wording of the statute, which gave them a preference lien upon the improvements. As stated, Shamburger never attempted to acquire a materialman’s lien in this case. In the ease of Doak v. Moore, 48 Tex. Civ. App. 594, 109 S. W. 405, it is held that a mortgage given upon fixtures, a part of the realty constituting a homestead, is void, and the holding in Inge & Boring v. Cain, 65 Tex. 75, is that in virtue of the definite language of the Constitution it can never become valid.

We find it unnecessary to enter into a discussion of this particular phase of the law, since it would have no bearing whatever upon the rights of Glenn, who alone has appealed. Steelman testified in effect that he was a man of family; that he built the house for a home, and lived in it ever since it was completed, and used and cultivated the land upon which it stood. There is in appellee’s brief an illuminating discussion of the question of the abandonment of a homestead and the rights of creditors under such condition, but in the view we take of the case this discussion becomes purely academic. It may be admitted that as between Steelman and Shamburger there was an abandonment of the nine-room house as a home, and it may be further admitted that as between them the deed of trust and chattel mortgage became operative as liens upon the house; still this would not impair the validity of appellant’s prior vendor’s lien, in the absence of some agreement or act upon his part which could be construed as a waiver or an estop-pel. When the house was attached to the realty, it became eo instante subject to the vendor’s lien existing against the land. The storm, by changing the position of the house, could not affect the rule of law, and no agreement made between Steelman and Shamburger, without the assent of Glenn, could impair the latter’s security.

For the reasons stated the "judgment is reversed, and the cause remanded. 
      ©r>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     