H. J. Huck & Co. v. Gaylord

• Decision Date: 01 January 1879
• Citation: 50 Tex. 578
• Court: Texas Supreme Court
• Parties: H. J. HUCK & CO. v. BEATRICE GAYLORD ET AL.

50 Tex. 578

H. J. HUCK & CO.

v.BEATRICE GAYLORD ET AL.

Supreme Court of Texas.

1879.

APPEAL from Victoria. Tried below before the Hon. H. Clay Pleasants.

The facts are given in the opinion.

Glass & Callender, for appellant.--The court considered the failure to record within six months as fatal to plaintiffs' claim, and rendered judgment for the defendants. This was error. (Const. 1869, art. 12, sec. 15; Act of November 17, 1871, sec. 1, Gen. Laws, p. 28; Pope v. Graham, 44 Tex., 196;Crosby v. Huston, 1 Tex., 237, 238; Noel v. Temple, 12 Iowa, 276; Townsend v. Harrison, 2 La. Ann., 174;Thompson v. Parrent, 12 La. Ann., 183;Roberts v. Hyde, 15 La. Ann., 51;DeWitt v. Smith, 63 Mo., 263; Cohn v. Hager, 30 Ark., 25.)

The lien was valid and binding between the parties, although the contract was not recorded within six months; and the court erred in holding the contrary, and thereupon rendering judgment for the defendants.

The homestead of Gaylord was by law subject to a lien for the price of materials furnished to construct his dwelling, and, being community property, the husband had the authority to create the lien by the purchase of such materials, and the assent of the wife was not necessary.

A. B. Peticolas, for appellees.

I. The contract sued on by the appellant is not such a contract as may, by being recorded, fix and secure a mechanic's lien, and therefore the court did not err in giving judgment for the defendant. (2 Paschal's Dig., sec. 7112; Tinsley v. Boykin, 46 Tex., 592;Malone v. Kaufman, 38 Tex., 454.)

II. The material-man has only six months from the date when the debt becomes due within which to establish and secure his lien by recording it, and if he fails to record within that time the lien ceases to exist. (2 Paschal's Dig., sec. 7112; Tinsley v. Boykin, 46 Tex., 592;Kohn v. McHatton, 20 La. Ann., 485; Greene v. Ely, 2 Green, (Iowa,) 508; Const. 1870, 2 Paschal's Dig., art. 2, secs. 15, 47, p. 1138; Warren v. Smith, 44 Tex., 246;Pope v. Graham, 44 Tex., 196;Campbell v. Fields, 35 Tex., 754.)

III. Only artisans or mechanics are given a lien by the Constitution. The lien of a material-man must be, by the consent of the wife, given in the mode prescribed by law, to bind the homestead. (Const. 1870, art. 12, secs. 15, 47; 2 Paschal's Dig., sec. 7112; Sampson v. Williamson, 6 Tex., 112, 115.)

BONNER, ASSOCIATE JUSTICE.

This suit was brought by the appellants, H. J. Huck & Co., against the appellees, Beatrice Gaylord and others, as the surviving wife and children of E. H. Gaylord, deceased, to enforce a lien as material-men for the price of certain lumber furnished E. H. Gaylord during his lifetime, used in the construction of a house for a homestead. It is admitted that the claim was not filed with the district clerk within six months after its maturity, as provided for by the act then in force, (Paschal's Dig., art. 7112,) entitled “An act to provide for and regulate mechanics', contractors', builders', and other liens in the State of Texas.”

Judgment was rendered for the defendants. They, as the wife and children of the deceased, E. H. Gaylord, must be considered as occupying the same relation toward the plaintiffs as he himself would, had he been living.

The decisive question in the case, and the only one deemed necessary for our consideration, is this: Was it necessary to fix and secure the lien, as between the parties to the contract, that the same should have been filed in the office of the district clerk within six months after maturity?

The Constitution of 1869, art. 12, sec. 47, provides that “mechanics and artisans of every class shall have a lien upon the articles manufactured or repaired by them for the value of their labor done thereon or materials furnished therefor; and the Legislature shall provide by law for the speedy and efficient enforcement of said liens.”

Although all reasonable intendments should be indulged in favor of that meritorious class of our citizens,--mechanics and artisans,--yet, as to them even, the courts, in construing and enforcing liens upon lands given to them not by express contract, but by statutory provisions under certain prescribed regulations, should require a substantial compliance with the statute in every respect. (Tinsley v. Boykin, 46 Tex., 592.)

The Constitution, however, did not give the lien except to “mechanics and artisans.” As shown by the authorities in Gaylord v. Loughridge, ante, decided at the present term, this cannot be extended to embrace any other class of persons. As a legislative construction supporting this view, the subsequent Constitution of 1876, art. 16, sec. 37, gives the lien not only to mechanics and artisans, as under that of 1869, but also to “material-men.”

The plaintiffs' right, then, to the lien, if it existed at all, must have been by virtue of the statute, and not the Constitution.

So much of the statute to which it is necessary to refer reads as follows: “Any person or firm, artisan or mechanic, who may labor, furnish material, machinery, fixtures, and tools to erect any house...