Horan v. Frank

| Tex. | Jul 1, 1879

Bonner, Associate Justice.

The material question in this case is this: Is a sub-contractor, under the Constitution of 1876 and the act of August 7,1876, in pursuance thereof) providing and regulating mechanics’ liens, entitled to such lien on the property for the amount due him by the principal contractor, the owner of the property not having been a party to their contract ?

' Section 37 of article 16 of the Constitution of 1876 provides as follows: “ Mechanics, artisans, and material-men, of every class, shall have a lien upon the buildings and articles made or repaired by them for the value of their labor done thereon or material furnished therefor; and the Legislature shall provide by law for the speedy and efficient enforcement of said liens.”

It may be remarked that, under the Constitution, no lien is given on the land as prayed for by plaintiff, but on the buildings only.

This provision of the Constitution evidently contemplated action on the part of the Legislature to provide by law for the enforcement of the lien thereby guaranteed.

In accordance with this express intention, the first Legislature thereafter passed the act of August 7, 1876. (Laws 15th Leg., 91.) Thus, almost immediately after the adoption of the Constitution, the Legislature construed this section of the same. By this legislative construction, and which should be entitled to great weight, no lien was given to such subcontractor, unless possibly under section 5 of the act, when a written contract had been duly made and recorded for the improvement of the homestead; but his rights were protected by a personal liability upon the owner of the property by delivering to him an attested account of the amount due by the principal contractor to the sub-contractor; this liability, however, not to exceed the amount then due by the property owner to the principal contractor.

This legislative construction complies with the language and the reasonable requirements of the Constitution, and accords with that given by this court in the case of Shields v. Morrow, decided at the present term, to the act of November 17, 1871, (Paschal’s Dig., art. 7112,) passed under section 47 of article 12 of the Constitution of 1869, and to our previous statutes upon this subject.

We do not say that, under the Constitution, or even without the clause above cited, the Legislature might' not, with proper safeguards protecting the just rights of the property owner, provide also for a lien to secure the sub-contractor to the extent of any amount which might be due by the owner to the principal contractor at the time the lien attached and notice thereof, either actual or constructive, given to the owner; but it has not thus provided.

Neither do we say that, in a proper case, (as where there was a fraudulent combination between the property owner and the principal contractor, who may be insolvent, to defeat the just rights of the sub-contractor,) he might not, upon sufficient allegations and proof, be subrogated to the lien of the principal contractor to the amount justly due him by the owner; but this case is not now presented by the record.

We are of opinion, then, that the plaintiff was not entitled to the lien on the property as claimed by him; and as his demand otherwise was not within the jurisdiction of the court, the judgment below, refusing the lien and dismissing the cause for the want of jurisdiction, is affirmed.

Affirmed.