Lewis v. Powell , 205 S.W. 737 ( 1918 )

On Motion for Rehearing. There is, we think, an obvious distinction between this case and that of Bauman v. Jaffray, 86 Tex. 617, 26 S.W. 394, and Berry v. Godwin, 188 S.W. 30, cited by appellant in his motion for rehearing, as being in conflict with our decision. In the first case a creditor who had not accepted under a mortgage conveying property to a trustee for his benefit attached the property; he subsequently dismissed the attachment suit, and sought to accept under the mortgage, which was resisted. Such creditor, without acceptance of the mortgage, had no lien; he could accept or reject the contract thus tendered for his benefit, A rejection of the offer put an end to it, unless renewed by mutual consent of all parties affected. It was held that the levy of the attachment was equivalent to a rejection of the mortgage. There was, therefore, no lien, or offer of lien, in the attaching creditor's favor. Having rejected the mortgage, he could not thereafter withdraw his rejection without the consent of those interested. In Berry v. Godwin, 188 S.W. 30, it was held, in effect, that a suit for partition by the plaintiff amounted to an abandonment of plaintiff's homestead rights in the property sought to be partitioned. Upon such abandonment, however indicated, certain rights of other persons attached to the property. The plaintiff in the partition suit could not thereafter withdraw the same, and thus defeat rights that had attached upon the institution of the suit. It will thus be seen that neither of the cases present a case of election of remedies. In the first case the action destroyed the lien itself, or rather precluded its existence, and in the second it created rights in favor of third persons which attached upon the taking of the action. Here the lien itself was in no wise affected by the ineffectual attempt to foreclose it in a particular manner.

We think our findings sufficiently cover the facts necessary to be found in a proper consideration of the case, and therefore overrule appellant's motion for rehearing and also his motion for additional findings.

HUFF, C.J., not sitting.