Warren v. Smith
| Decision Date | 01 January 1875 |
| Citation | 44 Tex. 245 |
| Parties | JOHN H. WARREN AND WIFE v. J. F. SMITH. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Smith. Tried below before the Hon. M. H. Bonner.
Suit by J. F. Smith against one Burns and Warren and wife upon a parol contract alleged to have been made between Smith and Burns to construct two rooms on a lot on which J. H. Warren's office was situate. Warren and wife excepted generally and specially, because the claim which was made an exhibit in the petition was not accompanied by a description of the lots and improvements, and no sufficient specification of the items of indebtedness was contained in said claim, which was the account or contract as recorded. The lot was described in the account as follows: “On the lot and attached to the office known as Dr. J. H. Warren's office, situate on the east side of the public square, in the city of Tyler, in Smith county, Texas.”
The first section of the act of November 17, 1871, regarding mechanics' liens, provides that “if the contract, order, or agreement be verbal, a duplicate copy of the bill of particulars shall be made under oath, one to be delivered to the clerk to be filed and recorded as provided for written contracts, and the other to be served on the party owing the debt.” Before the institution of the suit Burns left the country and was cited by publication. There was no evidence that the improvement was made on the employment of Mrs. Warren. The original petition alleged that the lot on which the improvement was made was the separate property of Mrs. Warren, but no instruction was given the jury which would elicit a finding by them as to whether or not Mrs. Warren authorized the improvements. Verdict on special issues and judgment for appellee, directing a sale of the entire building, when the material and labor was furnished on but a part of it.Stephen Reeves, for appellant, cited Adkins v. Ware & Sons, 35 Tex., 583;Magee v. White, 23 Tex., 180; Haynes v. Stovall, Ib., 625.
Jones & Henry, for appellees, cited Paschal's Dig., art. 4641; Wilburn v. Walker, 11 Tex., 329.
The statute regulating mechanics' liens does not provide in what way the wife's separate estate may become subject to the lien for improvements thereon. (Paschal's Dig., art. 7112, et seq.) No reason is perceived why the statute regulating marital rights and prescribing in what cases the wife's separate estate may be made liable should not control the creation of a mechanics' lien on her estate. (Paschal's Dig., arts. 4643, 4644, 4645.) This conclusion seems to be...
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