
    McGRAW et al. v. FOXWORTH-GALBRAITH LUMBER CO.
    No. 3837.
    Court of Civil Appeals of Texas. Texarkana.
    April 4, 1930.
    Rehearing Denied April 10, 1930.
    Webb & Webb, of Sherman, for appellants.
    Head, Dillard, Maxey-Freeman, McReyn-olds & Hay and J. F. Holt, all of Sherman, for appellee.
   LETT, J.

Mrs. McGraw, wife of the appellant T. W. McGraw, died in March, 1923. Surviving her were her husband, T. W. McGraw, and five adult and four minor children. In January, 1924, T. W. McGraw duly qualified and gave bond under the statute as the community administrator of the estate of himself and wife. Lots 4 and 5 in block 2 of G. W. Gray’s Second addition to the city of Sherman was the community property and the homestead of Mr. and Mrs. McGraw. In 1927 the homestead residence was destroyed by fire. T. W. McGraw desired to rebuild the residence on the lots, and executed the note, contract, and deed of trust herein stated. The note was in the sum of $6,000, dated September 29, 1928, payable on or before January 1, 1929, to Foxworth-Galbraith Lumber Company or order, bearing 8 per cent, interest and stipulating for 10 per cent, attorney’s fees if collected by suit. The following written contract was executed:

“Tbe State of Texas, County of Grayson.
“Tbis agreement between Foxworth-Gal-braitb Lumber Company, a corporation, and T. W. McGraw, of Grayson County, Texas, Witnessetb:
“T. W. McGraw bas tbis day executed to Foxworth-Galbraith Lumber Company bis note for tbe sum of Six Thousand Dollars ($6,000.00), payable on or before January 1st, 1929, and secured by deed of trust executed by bim to H. F. Young, Trustee, on Lots Four (4) and Five (5) in Block Two (2) of G. W. Gray’s Second Addition to tbe City of Sherman in Grayson County, Texas.
“Tbe consideration for said note is lumber, building materials and money sold, advanced and to be advanced by tbe Foxwortb-Gal-braitb Lumber Company to T. W. McGraw, used and expended by bim in constructing a two-story brick veneer residence on tbe property above described.
“If tbe total value of tbe lumber, building materials and money heretofore and hereafter advanced to T. W. McGraw for said purposes shall amount to less than tbe sum of Six Thousand ($6,000.00) Dollars, said note shall be credited an amount equal to tbe difference between such total value and tbe amount of said note.
“Executed this tbe 29th day of September, A. D. 1928.
“Foxwortb-Galbraitb Lumber Company,
“By H. F. Young, Manager.
“T. W. McGraw.”

To secure payment of tbe note, T. W. Mc-Graw, acting both individually and in bis capacity as community administrator, on September 29, 192S, executed a deed of trust to H. F. Young, trustee, on lots 4 and 5 in block 2 of G. W. Gray’s Second addition to tbe city of Sherman. Tbe Foxworth-Galbraith Lumber Company sued on tbe note to tbe amount of $4,289.85, claiming that it bad furnished materials and money to pay labor in such sum, and to foreclose tbe lien of tbe deed of trust. T. W. McGraw individually and as community administrator, and tbe adult and minor children, were all made parties defendant to tbe suit. T. W. McGraw pleaded, in effect, that tbe note and deed of trust were procured from bim to be left with a loan company for purposes of obtaining a loan only, and that tbe loan was not effected; that there was only a conditional delivery of tbe note and deed of trust to tbe lumber company; that the lumber company agreed to complete tbe bouse, and failed and refused to do so; that tbe note and deed of trust were procured from bim by fraudulent representations. Tbe court sustained exceptions to tbe matters pleaded by tbe children, except tbe answer of general denial.

Claude Dilden intervened in tbe suit, claiming that be bad furnished and set tbe tile in tbe bathroom of tbe new bouse and tbe defendant T. W. McGraw bad contracted to pay bim therefor, and that be bad a statutory lien to secure tbe payment of tbe sum due.

After bearing tbe evidence tbe trial court peremptorily instructed tbe jury to return a verdict in favor of tbe plaintiff lumber company for tbe sum sued for against T. W. Mc-Graw, with foreclosure of tbe lien and deed 'of trust against all tbe defendants; and in favor of tbe intervener against T. W. McGraw for the amount sued for, with foreclosure of the mechanic’s lien against all the defendants. Tbe defendants have appealed from tbe judgment.

It is believed that tbe trial court did not err in giving the peremptory instruction. According to tbe testimony, a fire destroyed tbe family residence and T. W. McGraw undertook to rebuild tbe bouse. He intended to and did use in tbe new building a lot of material that he bad already on band, and intended to purchase more material as needed to finish tbe building. He proceeded to have tbe plumbing, electric wiring, concrete work, brick work, and painting done by different persons. On September 29, 1928, tbe date the note and deed of trust were executed, the building was about half completed, and up to that time T. W. McGraw had bought materials from tbe appellee lumber company to tbe amount of $1,868.70. There was no evidence that tbe lumber company agreed to erect or complete tbe bouse, and it was not contemplated that it should do so. There was no estimate made of materials or money, and there was no contract to furnish materials or money in any fixed amount. Tbe contract in evidence was executed contemporaneously with tbe note and deed of trust. Tbis contract expressly provided that liability on the note and tbe lien on tbe land should be limited to tbe amount of materials and money actually furnished to T. W. McGraw, not to exceed $6,000. Tbe evidence' conclusively shows strict compliance by tbe lumber company to their part of tbe contract, and that it bad furnished materials and money to pay labor to T. W. McGraw to the amount of $4,289.85. There is no evidence that tbe lumber company upon being called on refused to furnish any materials or money to pay labor while tbe work on tbe bouse was in progress. Tbe note, deed of trust, and tbe contract were all delivered to tbe lumber company for tbe purpose and intention of acting on them, and they were acted on by both parties. • Tbe deed of trust was placed of record, and Mr. Mc-Graw knew it. Tbe amount of materials and money furnished by tbe lumber company was unquestioned by Mr. McGraw in tbe trial. The intervener also showed, that he had furnished merchandise and labor and had complied with statutory requirements to fix a mechanic’s lien on the land. In view of the conclusive circumstances there was no disputed fact arising for trial by the jury. The questions arising were matters of pure law. The contract, properly interpreted, did not obligate the lumber company to erect and complete the house, but to furnish to T. W. Me-Graw “building materials and money” needed by T. W. McGraw in furtherance of the contract made by him to have the building erected. T. W. McGraw was obligated to pay whatever sum that might be, not to exceed “the sum of $6,000.00” for the “building materials and money” that might be “sold, advanced and to be advanced” to him. The contract provides that if the total value of such building materials sold and money advanced to T. W. McGraw be in fact “less than the sum of $6,000.00,” then and in that case “said note shall be credited an amount equal to the difference between such total value and the amount of said note.” The husband can legally mortgage, as here done, the community property after he has duly qualified and given bond under the statute as community administrator. Jordan’s Executors v. Imthurn, 61 Tex. 276; Astugueville v. Loustaunau, 61 Tex. 233; Stevenson v. Roberts, 25 Tex. Civ. App. 577, 64 S. W. 230. In the case of Texas Land & Mortgage Co. v. Cooper (Tex. Civ. App.) 67 S. W. 173, the husband surviving the wife does not appear to have qualified as community administrator. In legal principles a mortgage made to cover future debts is not void. Freiberg v. Magale, 70 Tex. 116, 7 S. W. 684; Law Sprinkle Mercantile Co. v. Hause (Tex. Civ. App.) 184 S. W. 737; Carleton Bros. v. Bowen (Tex. Civ. App.) 193 S. W. 732.

The children complain of exceptions sustained to their answer. It is believed that the court did not err in this respe.et. Having given bond under the statute (article 3667, R. S.), the father had the power to dispose of the property (article 3663, R. S.); and the only remedy available to the children was on the bond. That the amount of the bond does not equal the amount of the community does not affect the father’s right of control. Jordan’s Administrators v. Imthurn, supra. The father having qualified as community administrator and having mortgaged the lots, a sale thereunder could legally be made, although the lots were the community homestead and although the sale would operate to divest the right of occupancy. Ostrom v. Arnold, 24 Tex. Civ. App. 192, 58 S. W. 630. Therefore the right did not legally .exist to the minor children to have the sale postponed for continued occupancy by them.

We have considered the several assignments of error, including the one complaining of the overruling of the application for continuance, and conclude that each one of them should be overruled.

The judgment is affirmed.  