| Tex. | Jul 1, 1879
This suit was instituted by R. M. Loughridge against Beatrice Gaylord, surviving wife of E. H. Gaylord, deceased, and their children, upon the following instrument in writing:
“Victoria, Tex., August 30, 1872.
“ On or before the 30th day of March, A. D. 1873,1 promise to pay to the order of Rev. R. M. Loughridge the sum of $300 currency, being money advanced me for construction of my dwelling-house,.in purchase of materials and payment of labor on same, and which constitutes a lieu upon the same until paid, with interest at ten per cent, from date.
(Signed,) E. H. Gaylord.”
This instrument, with a description of the property upon which a lien was claimed, was tiled for record, and a lien sought to bo enforced under the provisions of the act of ¡Nov. 17,1871, (Paschal’s Dig., art. 7112,) entitled “An act to provide for and regulate mechanics’, contractors’, builders’, and other liens in the State of Texas.”
It was in testimony that the property, although community, constituted the homestead of the family; that the above instrument was for an unpaid balance of $650, borrowed from the plaintiff by E. H. Gaylord April 2, 1872, to pay for lum
E. H. Gaylord having subsequently died without payment, this suit was brought to enforce an alleged lien on the property for material furnished in erecting the building. Judgment was rendered for the plaintiff, that $330.55 remainder was due, and enforcing a lien on the building and lot.
Before disposing of the question of the statutory lien for materials furnished, we will dispose of that of the express lien given by the terms of the contract, as it is insisted in argument that the husband alone had the right to thus incumber the homestead for money with which to improve it.
It has always been the settled policy of Texas, and which has been incorporated into her several Constitutions, to prohibit the voluntary alienation or incumbrance of the homestead, as such, by the husband alone, without the consent of the wife in such manner as the Legislature may provide.
Although this restriction has been relaxed in favor of vendor’s liens, upon the principle that the title was not acquired until the purchase-money had been paid, yet we are not aware that any case has gone to the extent to give the right to the husband alone, without the consent of the wife, to subject the homestead to forced sale to satisfy a lien for material used in its improvement. It is not believed that this was given by that clause of section 15 of article 12 of the Constitution of 1869, then in force, which provided for a forced sale of the homestead for “labor and materials expended thereon”; but that this was intended, as held in Campbell v. Fields, 35 Tex., 754, simply to enlarge the scope of the lien, by adding to the old law a new subject upon which to operate. It may be remarked, that under section 50 of article 16 of the Constitution of 1876, now in force, this construction is placed beyond doubt by express enactment.
We are of opinion, then, that the instrument by its terms did not create an express lien, for want of power in the hus
Did the plaintiff have this lien under the facts of his case as applied to the laws then in force ?
Section 47 of article 2 of the Constitution of 1869 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.”
The statute is more comprehensive, but it embraces a legitimate subject-matter, in regard to which the Legislature was neither expressly nor necessarily impliedly restricted by the terms of the Constitution.
So much of the statute as is necessary for this opinion is as follows: “ Any person or firm, artisan or mechanic, who may labor, furnish material, machinery, fixtures, and tools to erect any house improvement, or to repair any building or article, or any improvement ■whatever, shall have a lien on such article, house, building, fixtures, or improvements, and shall also have a lien on the lot or lots, or land necessarily connected therewith, to secure payment for labor done, material and fixtures furnished for construction or repairs.” (Paschal’s Dig., art. 7112.)
The mechanic’s or builder’s lieu on real estate did not exist at common law. (Pratt v. Tudor, 14 Tex., 39.)
To entitle a party to this character of lien under the statute, he should both have been embraced within its terms and have substantially complied with its provisions. (Tinsley v. Boykin, 46 Tex., 592" court="Tex." date_filed="1877-07-01" href="https://app.midpage.ai/document/tinsley-v-boykin-4892870?utm_source=webapp" opinion_id="4892870">46 Tex., 592.)
In the case of Godeffroy v. Caldwell, 2 Cal., 491, it is held, that “ the mechanic’s lien law provides exclusively for the security of material-men and laborers; and one who advances money as a loan, although expressly for the payment of materials and labor devoted to the erection of the building, can have no claim to the benefit of the law.”
The .equitable lien of the vendor of land, does not extend to one who simply advances the money to the purchaser to release the land from the incumbrance. (Malone v. Kaufman, 38 Tex., 454" court="Tex." date_filed="1873-07-01" href="https://app.midpage.ai/document/malone-v-kaufman-4891796?utm_source=webapp" opinion_id="4891796">38 Tex., 454.)
The statute under consideration seems sufficiently broad to embrace any person who might furnish material, yet the evident intention of the Legislature in the use of this term was to include some character of material which entered into the structure of the building and formed a component part of it, and not a loan of money with which to purchase the same.
We think the court below erred in deciding that the plaintiff was entitled to a lien on the property, and the judgment is reversed.
Reversed and remanded.