91 S.W. 781 | Tex. | 1906
This action was brought by defendant in error against W.J. Athens to recover the contract price for labor and material performed and furnished in painting and papering three houses located upon as many lots in Cleburne, and to foreclose a statutory lien upon the buildings and lots. One of the lots was claimed under Athens by the Loan Investment Company, another by T.W. and Emma Blocker, and the third by A.M. Morgan, all of whom, with others who need not be further noticed, were made parties defendant. Upon the trial in the district court, Morgan succeeded in defeating the lien set up against his lot upon the ground that plaintiff had estopped himself from asserting it, and a judgment was rendered in plaintiff's favor against Athens for the amount of the demand, and against the Loan Company and Blocker and wife foreclosing the lien for the whole amount against the lots claimed by them. This judgment, upon the appeal of the two last named, having been affirmed by the Court of Civil Appeals, the case is now before us on the writ of error granted upon their application.
It appears that two of the three lots were in the same block and were contiguous, while the third was in another block and separated from the others by a street. The demand sued upon was due on a contract for the entire price which Athens agreed to pay for painting and papering the three houses, and no attempt was made to show the value of the labor done and material furnished for the improvement of either of the houses. The houses were entirely distinct and separate from each other, *557 and no lien was expressed in the contract sued upon. We thus have the question whether or not, under such circumstances, the statute can be held to give a lien upon all of the houses and lots for the whole price of the work and materials.
In the decisions of some of the states this question is answered in the affirmative, and, in others, in the negative. Necessarily all such questions are controlled by the local statutes, and the decisions first mentioned do not distinctly show the provisions upon which they are based. We must follow what we find to be the true meaning of our own legislation upon the subject and therefore deem it unnecessary to closely examine the reasoning by which those decisions are reached.
Article 3294, Revised Statutes, gives to one who may labor or furnish materials, etc., to erect or repair any house, building or improvement, a lien upon "the house, building, fixtures, improvements" and on the "lot or lots of land necessarily connected therewith." Article 3299 provides that in filing the contract to fix the lien, the claimant shall give a description of the "house, building or improvement and the lot or tract of land." Article 3300 provides: "If this lien is against land in a city, town or village, it shall extend to or into the lot or lots upon which such house, building or improvement is situated, or upon which such labor was performed, and if the lien is against land in the country, it shall extend to and include fifty acres upon which such house, building or improvement is situated, or upon which such labor has been performed."
The leading purpose running through these and the other provisions of the statute is to secure persons furnishing labor or materials in improving land by a lien upon that into which the labor or material has entered, i.e., the structures and the land to which they are attached. As to the improvements, the same purpose is expressed in the constitution, article XVI., section 37. Evidently the statute contemplates one improvement constituting an entirety to be affected by the lien to secure the value of the work, material, c., which made it, and not that one improvement is to be charged with the cost of an entirely different one. Upon the question thus suggested, as to what shall be considered one improvement for this purpose, there is room for different constructions of the statute. Some authorities in other jurisdictions hold, in substance, that this is to be determined by the character of the structures, and that if they are separate and distinct in their construction and the purposes for which they are erected, although all be located on one body of land, the lien can only attach to each for the value of the things which entered into it. Others hold, that if the improvement be made under an entire contract for the whole and be located upon one body of land, this makes it one improvement, although there be several separate houses. Still others regard entirety of contract as the only essential and treat the lien arising out of such a contract as attaching to all of the improvements and all the land on which they are situated, although the latter consists of several parcels separated from each other by other land. The decision of this court in Lyon v. Logan (
Since we hold that there was no lien affecting all of the lots, we need not consider the other question raised as to what would otherwise have been the effect of the discharge of the lien on Morgan's lot upon that asserted against the others.
The defendants offered evidence to show a lien held by them upon some of the property claimed to have been superior to that asserted by plaintiff, which evidence was excluded on the ground that their pleadings were not sufficient to admit it. As this objection may be obviated by amendment, should the evidence become important in further proceedings, it is unnecessary that we discuss the sufficiency of the present pleadings, in the absence of special exceptions, to admit the evidence. They are, to say the least, extremely vague and general.
Reversed and remanded.