Lyon v. Logan

• Court: Texas Supreme Court
• Writing for the Court: Stayton
• Citation: Lyon v. Logan, 5 S.W. 72, 2 Am. St. Rep. 511 (Tex. 1887)
• Decision Date: 21 June 1887
• Parties: LYON and others v. LOGAN and others.

5 S.W. 72

LYON and others v. LOGAN and others.

Supreme Court of Texas.

June 21, 1887.

Appeal from district court, Clay county.

Davis & Garnett, for appellants. Barrett & Stine, for appellees.

STAYTON, J.

This action was brought by the appellants to recover from E. R. Logan the value of material alleged to have been furnished by them to Logan, which was used in erecting business houses on lots Nos. 1 and 2, in block 6, in the town of Henrietta. They seek also to enforce the lien given to persons who furnish material used in the construction of buildings. The appellees Stine and Eustis were made defendants, as the petition alleges, because they claim or assert some right in the property acquired through Logan since the material was furnished. The two lots are described in the petition as follows: "Beginning at the north-west corner of said block No. (6) six; thence south 44 feet; thence east 110 feet; thence north 44 feet; thence west 110 feet, to the place of beginning." The petition further alleges that the material was furnished on a verbal contract, and that within the time required by law a copy of the bill, showing the particulars of the material furnished, was delivered to Logan, and another filed in the office of the clerk of the county court, which was by him recorded in a book kept for the purpose of recording mechanics' liens; and it further alleges that the copy of the bill of particulars, so recorded, contained a description of the lands on which the houses were erected. The bill of particulars, so recorded, was made an exhibit to the petition, and it showed that the lien was claimed on lots 1, 2, and 4, in block 6 of the original plat of the town of Henrietta; and the clerk's certificate showed that it was recorded "in the records of said county in Vol. 1, at pages 162, 163, 164, 165, 166, 167, and 168, Bill of Sale Record." The answer alleged "that the said lots No. one and two, together with the houses erected thereon at the time said materials were contracted for and furnished, were owned by E. R. Logan, and that the lots No. 3 and 4 in said block No. 6, together with said houses erected on said lot No. 3, in said block No. 6, but stated in said claim of lien to have been erected on said lot No. 4, in said block No. 6, and that said lots 3 and 4 were owned by W. G. Eustis at said time." The answer further alleges that lots 1 and 2 are not adjoining lots 3 and 4, and that the houses are two separate and distinct buildings.

The pleadings thus standing, the defendants filed demurrers, general and special, at the same time their answer to the merits was filed. The substance of the demurrers was as follows: (1) That the petition was insufficient in law; (2) the petition alleged the material was used in the erection of buildings on lots 1 and 2, block 6, while Exhibits A and B, attached to the petition, showed that the material was also used in the erection of a building on lot 4; (3) the bill of particulars was not recorded, as the law directs, in a book kept for the purpose of recording mechanics' liens, but in the bill of sale book; (4) the lien sought to be foreclosed is a joint lien for the material used in the erection of the houses on lot 4, as well as on lots 1 and 2; (5) the claim of lien and bill of particulars does not show that E. R. Logan was the owner of the property, or the agent of the owner. These were sustained, and the cause dismissed. The residence of Logan was alleged to be in Kauffman county, and he filed a sworn plea to the jurisdiction of the court as to himself, in which he denied the existence of a lien.

1. The petition only seeks to foreclose a lien on lots numbered 1 and 2, in block 6; and it avers that the material furnished was used in erecting the only houses on these lots. The statement appended to the bill of particulars, and recorded, embraced lot No. 4, but we do not see that this misdescription of the land on which the houses were erected would affect the appellant's right to a lien on lots numbered 1 and 2, which were embraced in the statement, and especially so in view of the fact that the answer alleges that no house was erected on lot No. 4. If the statement had failed to embrace the lands on which the buildings were actually erected, it would be insufficient; but that it claimed a lien on another lot not subject to the lien cannot vitiate it. The material-man's lien will be restricted to the property on which he has the right to a lien, although he may assert a claim to a lien on other property. It has, so far as we know, never been held that the claiming of a lien on more land than the lien...