Barnes v. White

• Decision Date: 23 November 1880
• Docket Number: Case No. 958.
• Citation: 53 Tex. 628
• Parties: N. H. BARNES ET AL. v. JOHN T. WHITE.
• Court: Texas Supreme Court

53 Tex. 628

N. H. BARNES ET AL.

v.JOHN T. WHITE.

Case No. 958.

Supreme Court of Texas.

Nov. 23, 1880.

ERROR from Rusk. Tried below before the Hon. A. J. Booty.

Suit by plaintiff to subject a house and lots named in the petition to the payment for material sold to defendant in error to be used in the construction of the house, and which were so used. The lots were bare of any improvements. The defendant and his family were boarding out, and the material was so furnished after the commencement of the improvements, and before the defendant occupied the house as his home. Other facts appear in the opinion.Jas. H. Turner, Geo. H. Gould and W. W. Morris for plaintiff in error.

I. This proceeding is had under the act of the 17th of November, 1871 (2 Pasch. Dig., art. 7112), entitled “An act to provide for and regulate mechanics', contractors', builders' and other liens in the state of Texas.” The statement shows that the terms of the statute were strictly complied with, and the question here is, whether the property here sought to be condemned was legally a homestead as against the material for construction at the time it was furnished by plaintiff? The improvement was not a homestead until actually occupied as such by defendant and his family, coupled with the intent to remain. Franklin v. Coffee, 18 Tex., 416; Thompson on H. & E., secs. 309, 244 and 245; Gee v. Miller, 11 Allen, 67; Gee v. Kingsbury, 13 Tex., 71;Tadlock v. Eccles, 20 Tex., 782;31 Tex., 683;Iken & Co. v. Olinick, 42 Tex., 196.

II. A mechanic, or one furnishing material of construction, cannot be deprived of his lien under the statute by a manifest intention to occupy after the proposed mansion has been completed as a homestead. He is protected by the statute and his contract under it. Pope v. Graham & Co., 44 Tex., 198;Mabry v. Harrison, 44 Tex., 292; Thompson on H. & E., sec. 317.

III. Under the contract in this case, it would be against common honesty to permit the defendant White to enjoy property constructed with the means of plaintiff in error. The statute should receive a liberal construction to uphold the demands of obvious justice. Defendant White must do equity by paying the plaintiff's demand here sued for, before he can claim the exemption he here seeks. Property may be claimed as a homestead, “provided, that the same shall be used for the purposes of a home,” etc. Constitution of State of Texas, art. 16, sec. 51; R. S., art. 2336; Thompson on H. & E., sec. 372.

Jones & Wynne for appellee.

BONNER, ASSOCIATE JUSTICE.

This suit was instituted in the district court of Rusk county, to recover an open account for $118.09 for certain sash, doors and other materials furnished by plaintiff Barnes to defendant White, on December 28, 1877, to aid in the construction of a dwelling house; and also to enforce the lien for the materials furnished.

On January 28, 1878, Barnes, to fix and secure this lien, caused a sworn bill of particulars, with description of the property, to be filed in the office of the clerk of the county court of Rusk county, and a copy to be served on White.

Among other defenses, White pleaded that the property for which the material was furnished was then and still is the homestead of himself and family, and that there was no sufficient contract entered into to subject the same to the lien sought to be enforced.

Judgment was rendered for defendant White.

Section 50, article XVI, Constitution of 1876, prohibits the forced sale of the homestead for work and material used in constructing improvements thereon, unless the contract therefor is in writing and the consent of the wife given in the same manner as is required in making sale and conveyance of the homestead-- that is, by privy examination taken before the proper officer under the statute in such cases made and provided. This was not attempted to...