Trane Co. v. Wortham, 15280

• Decision Date: 11 April 1968
• Docket Number: No. 15280,15280
• Citation: 428 S.W.2d 417
• Parties: The TRANE COMPANY, Appellant, v. Miles F. WORTHAM, Appellee. . Houston (1st Dist.)
• Court: Texas Court of Appeals

Page 417

428 S.W.2d 417

The TRANE COMPANY, Appellant, v. Miles F. WORTHAM, Appellee.

No. 15280.

Court of Civil Appeals of Texas Houston (1st Dist.).

April 11, 1968.

Rehearing Denied May 9, 1968.

S. Mitchell Glassman, Houston, for appellant; Diamond & Totz, Houston, of counsel.

Carl, Lee & Fisher, Robert H. Fisher, Houston, for appellee.

COLEMAN, Justice.

This is an appeal from a summary judgment entered in favor of the defendant in a suit to foreclose a mechanic's and materialman's lien . The principal question presented is whether, following the assignment of a debt incurred as specified under Article 5452, Vernon's Ann.Civ.St., the assignor may fix and secure a mechanic's and materialman's lien by filing in his own name the lien affidavit as provided in said article.

Prior to March 5, 1965, Tom Stinnett Company, a Texas corporation, entered into a subcontracting agreement with Stresdek Buildings, Inc., to install air conditioning equipment in improvements being erected by Stresdek Buildings, Inc., as contractor, on real estate owned by Miles F. Wortham.

On March 5, 1965, by a written instrument Tom Stinnett Company assigned to The Trane Company all money accruing to the Stinnett Company by reason of this subcontract. On or about July 10, 1965, Tom Stinnett, as agent of the Stinnett Company, executed and filed with the County Clerk of Harris County, Texas, a mechanic's and materialman's lien affidavit against the Wortham real estate claiming the sum of $7,501.30 due to Tom Stinnett Company for labor and materials furnished in the installation of a central air conditioning system upon the real estate.

The Trane Company brought this suit against Stresdek Buildings, Inc., for debt and against Miles F. Wortham for foreclosure of the mechanic's and materialman's lien alleging the facts stated and that Tom Stinnett Company had assigned the lien to it after it was fixed and secured. On motion of appellee the trial court severed the cause of action for foreclosure of the lien, and granted a summary judgment for appellee in this portion of the case. This action was taken on the basis of the pleadings alone. There were no affidavits, depositions, or answers to requests for admissions of facts filed in the case. Appellant asserts that the trial court erred both in severing the causes and in granting the summary judgment.

Article 5452, V.A.C.S., provides that a corporation furnishing labor or material for the construction or repair of any improvement shall have a lien on the improvement and the lot or lots of land necessarily connected therewith to secure payment for the labor done or material furnished, or both, upon complying with the provisions of the Act.

Article 5453, V.A.C.S., provides that a subcontractor entitled to a lien shall file his affidavit claiming the lien with the County Clerk for recordation, and he is required to send copies of the affidavit to the owner.

There is no attack here on the form or contents of the affidavit filed. There is no contention that the lien claimant failed to give necessary notice. Appellant contends that the statutes mentioned above clearly place the right to claim and file a lien in the person or corporation actually furnishing the labor and material, here the Tom Stinnett Company, and that, since this company in fact executed and filed the affidavit, the lien was fixed and could be assigned. Appellant has alleged an assignment, and there is no summary judgment evidence negativing the existence of such an assignment.

Appellee's position in support of the trial court's judgment appears to be that since the subcontractor had assigned the debt to appellant, it had no further interest in the matter, so that the affidavit filed by an agent of the Tom Stinnett Company could not fix and perfect a lien which would inure to the benefit of appellant or could be assigned to appellant.

While the decisions from other jurisdictions are based largely on the provisions of their statutes creating mechanic's and materialman's liens, to point up the problems in this area we quote from 36 Am.Jur., Mechanics' Liens, §§ 194--196, pp. 130--131:

' § 194. Generally.--Mechanics' liens which have been perfected may be assigned, and the assignee may enforce such assigned lien in the same manner as the assignor could have; such assignment is not against public policy. There is some conflict among the decisions as to whether an assignment of a lienable claim carries with it a right to a lien.

'No particular form of words is necessary to constitute an assignment of a mechanic's lien; it is sufficient if the intent of the parties to effect an assignment is clearly established.

' § 195. Right of Assignee to Lien.--According to the rule obtaining in some jurisdictions, the assignment by a laborer or materialman of his claim for labor or materials confers upon the assignee no right to acquire or perfect the lien to which the assignor was entitled. In other words, the assignment of a claim carries no lien unless the mechanic or materialman has proceeded to acquire or perfect a lien as required by the statute. This rule is based upon the idea that the statute confers only a personal right to acquire a lien, or that no lien is acquired merely by doing the work or furnishing the material, but that something is required to be done by the claimant before a lien attaches, such as giving notice to the owner or complying in some manner with the controlling statutes. On the other hand, the position has been taken by the courts of a number of jurisdictions that the assignment of a lienable claim carries with it the right to the lien and clothes the assignee with authority to take the necessary legal proceedings to perfect and enforce it. This rule is recognized more often in jurisdictions where the lien is deemed to attach as soon as the labor is performed or the material is furnished, no proceedings being necessary in order to create the lien.

' § 196. Right of Assignor to File Lien.--In those jurisdictions where a lienable claim may be assigned, if one entitled to a mechanic's lien makes an absolute assignment of the sum due him, and not merely as security, a lien statement filed by him on his own account after such assignment, although within the statutory time, is void, and will not, therefore, inure to the benefit of his assignee. But if the sum due is assigned as collateral security for the payment of a debt, the assignor still has sufficient interest to entitle him to file a lien statement afterward within the statutory time, which will secure his equitable rights in the claim assigned, and also inure to the benefit of his assignee.'

It is a rule of long standing that the mechanic's and materialman's lien statutes of this state will be liberally construed for the purpose of protecting laborers and materialmen. It is also well established that it is not the registration required by the law, but the law itself, which gives a mechanic or materialman a lien upon the property improved by the labor or by use of the materials by reason of which a lien is asserted. The filing of the affidavit required by Article 5453, V.A.C.S., does not create a lien on the property, but fixes and secures upon it an existing lien. University Savings and Loan Ass'n v. Security Lumber Co., 423 S.W.2d 287 (Tex.Sup.1968).

It is generally true that the security for a debt is inseparable from the debt. Where a debt is secured by a lien on real estate, the assignment of the debt carries with it the lien, and payment of the debt extinguishes the lien. West v. First Baptist Church of Taft, 123 Tex. 388, 71 S.W.2d 1090 (1934); Pope v. Beauchamp, 110 Tex. 271, 219 S.W. 447 (1920); Wynn v. Flannegan, 25 Tex. 778 (1860); Cebell v. Hauser, 112 S.W.2d 285 (Tex.Civ.App., San Antonio 1938, writ ref., w.o.j.); 58 Tex.Jur.2d, Vendor and Purchaser, § 324, p. 569.

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