*1 Enigneering Production Kelley, Korkele D/B/A Kork Company Company Et Al. Oil Creek January 1958. A-6230. Decided No. Rehearing February overruled (309 208) S.W. 2d Series *2 Fitzgerald, Falls, petitioner, Kelley. W. E. of Wichita sustaining Appeals Court erred in the error Civil sustaining the trial in pleas court in abatement and dismiss- ing Ry. Gentry, suit. Texas v. Western Co. 98; Allison, 8 S.W. Phoenix Ins. Co. v. Texas 30 87 S.W. 547; Reno, East Texas Const. Co. v. 231 2d 799. S.W.
Donald Bowie, & Donald Donald, respon- and Paul all of response dent. In Burrows, 824; cited Freeman v. 171 2d S.W. Harrington, Cobb 144 2d Texas S.W. opinion Garwood delivered the of the Court. Mr. Justice petitioner Kelley brought Our this action in his own behalf primarily upon recover a pursuant release bond executed 5472c, Stats., Art. by respondents-de- Vernon’s Texas Civ. Company fendant Bluff Creek Oil as and Commercial Company Standard Insurance for the release of the petitioner’s alleged mechanic’s and materialman’s lien Montague County three prescribes oil leases. Said Art. 5472c period year bringing of one suits, for the of such and this year year. However, during suit was filed within the all of the assignment a bank held the lien under a collateral petitioner to secure a debt in an latter amount somewhat claim, smaller than that of his having lien not ever bank party having reassigned been amade to this suit peti- and tioner principal holding well after question. Our that, notwithstanding facts, these latter action is not barred. Other matters decided relate to the conten- respondents-defendant, tions of the Bluff Creek and Commer- Standard, provision cial 5472c, under further of Art. supra, precluded by petitioner’s the bond was bring thirty days following failure to suit within receipt his invalidity notice of the well as his claimed itself; (as lien contention of peti- Bluff Creek alone extent) tioner this Court to that Court Civil recognizing Appeals against personal right Kelley erred in of action of Creek, apart from price for the materials services which are the basis of the Kelley allegedly to Bluff furnished alleged lien and were question. operator of the leases Creek Appeals, see opinion Civil Court For 2d 263. case as follows: arose seeking a 5th, 1951, petitioner-plaintiff, January On question, the leases
mechanic’s materialman’s account for some an affidavit and annexed $2500 filed county assigned the claim to Na- thereafter Wichital clerk. He of March Falls written instrument Bank Wichita tional 29th, Dollars, 1951, reciting ($10.00) “Ten consideration of pur- *3 good considerations” and otherwise and and valuable other power complete ownership “with full porting transfer of abe therefor,” although, authority receipt and above and to collect upon herein- the and as shown without contradiction indicated hearing, purpose of its was secure debt mentioned after sum of some petitioner-assignor the bank in the $1900. the filed, 3rd, and May 1951, of the lien the for release was On following given petitioner-plaintiff on the June notice thereof supra. 12th, 5472c, pursuant all to Art. bearing statute, portion importantly most the latter
Of case reads: brought any action shall be or maintained in “Sec. No establish, any foreclose of court to enforce or lien claim lien brought unless same shall be referred to such bond within provided. thirty days after the of thereof as herein service notice any at within one After such 30 time from holding service, party making or such such claim date of upon no action shall lien sue such bond but * * *” expiration period. upon after the such bond brought any concerning Kelley has never his claim present April 24th, (about except suit which he filed on seeking being bond) after served with notice ten months primarily upon for the amount his claim judgment alternatively, apart from the bond and the money judgment Bluff alone for the amount simple Creek was, course, mentioned date of suit within his claim. The period one-year for action on the some thirty-day period after for suits nine months * * * any establish, .” or foreclose At the time “to enforce moreover, long passage suit, and until after Kelley filed remaining period, statutory one-year his months of the two original assignment effect; to the remained in nor did his bank pleading assignment ; petition, other filed him refer to the nor party suit. nor was the bank ever made respondent-defendant May 20th, On filed “answer,” alleging, relevant, presently so far as the suit it “should be abated and not further considered be- cause,” the claimed lien was invalid under the lien statutes and petitioner (by was not owned “at this time” reason petitioner having assigned it) because foreclosure statutory thirty-day period suit had been commenced provided therefor. 15th, July hearing prior On pleas case, reassigned petitioner-plaintiff
the leged bank al- his acknowledging claim and lien instrument the collateral original assignment payment character of the and full debt secured. 11th, May respondent-defendant,
On Creek, pleas, grounds presently filed two relevant of which were substantially the same as pleas the above-mentioned earlier respondent-defendant surety. March, 1956,
In the trial court heard the above-described pleas, thereon, suit, with evidence and dismissed the entire in- *4 cluding against the alternative count Bluff Creek alone and apart expressly from the bond and lien. The dismissal was exclusively alleged on petitioner-plain- based the failure of the (a) begin establish, tiff to a suit “to enforce or foreclose” his thirty-day period sue, lien within (b) the as and while claim, owner one-year period. the Court Appeals primary (on as bond) Civil affirmed count the sustaining ground (b) behalf, of the trial court in this re- versed and ordered a trial on the merits as to the alternative count granted Bluff Creek alone. 298 2d 263. We error, application Kelley, writ of on petitioner-plaintiff, and, action, granted to review affirmance of this because application questioning also of Bluff Creek the reversal. statement, holding (b) Our earlier that presents above case, question holding in the means that (a) of appears clearly as, the trial court to us rather merit, without indeed, evidently Appeals. it did also Court of Civil Art. Reg. (Chap. 211, Leg., Sess.). enacted in 1929 5472c was 41st emergency reflect, plainly without benefit provisions Its object it, free plainly that its clause, with and even more indemnity land liens substitution from mechanic, unpaid con- security afforded otherwise Chap. of2 under his lien claimed tractor or materialman that of en- include declared motives R. 1925. Its Title S. lands, upon abling landowners, their avoid in need loans easing the liens, as that of as well delays prior from claims claimants. The statute of lien pressure threats of foreclosure purports to affect altogether in nowise liens and deals than as liens. asserted otherwise claims later refer further to the alternative count of we While respondent, petitioner money judgment for mere lien, it Crek, apart or claimed alone and from the bond that this count cannot conceiv- noted now should doubtless be ably (or, thirty-day period limitation be affected matter, one-year period) latter of the statute. The personam claims, simply we with in whether has no connection Indeed, provisions objects specific its or look at its motives. affirmatively thirty-day provision quoted the personam above excludes expressio statutory rule suits under the And, unius con- one-year course, referring, period, as struction. does, bond,” “upon taken to to suits such cannot be include suit, expressly not a suit “on an alternative count such bond.” petitioner’s thirty- also But count on is the the bond following
day Immediately provision irrelevant. (see provides quoted) that “After such Sec. above the statute “may any year” the and at time within one lien claimant brought upon sue no action shall be such bond but language period.” after of such The latter unambiguously, affirmatively, permits action well year, provisions it nor other bond within the and neither itself, purports statute, thirty-day provision unless it be previous kind attach condition that of some shall Indeed; on the bond can be maintained. before action condition, extraordinary. made, somewhat such a would be *5 statute, liability is By on the bond the terms of Sec. upon proof validity question, of the lien in conditioned litigated obviously question in a well suit on the that could be thirty-day separate peri to filed within the suit a bond why separate to be two there have suits —one So should od. (on bond) year days the other thirty to a limited'to —in latter? judgment in the a reach order to argument áuthority made, only principle strange qualification made, implying a toward could be a on the within unqualified permission to sue an otherwise single in the context “No year, word “establish” is the * * * any establish, or foreclose lien enforce shall be ** * * * * * * Obviously days the words thirty unless within that, lien claimant merely if the mean or foreclose” “enforce rejecting the equivalent, or its an actual foreclosure insists on very bond, remedy must do so he equally on beneficial pur- from the dominant promptly at all. This is evident or not land from liens and pose itself, free the the Act which would, It substituting the lien. a foreclosures indeed, object its own a to defeat absurd for such statute litigation merely embroiling the land itself foreclosure obviously And since order to maintain an action on the bond. any supposedly not be intended required suit could foreclosure expressly per- preclude bond, the statute to mits, action on judgment, purpose? pursued to there what would be its If judgment would foreclosure and also one on the be both bond, for a which is intended to substitute foreclosure! reasoning applies or less the
More idea bring days thirty the claimant must first suit within to “es- suing year prerequisite tablish” his lien as a within bond, legis- affirmatively as the statute allows him to do. If the drastically qualify lative intent had been thus its affirmative provision, probably it would stated in have so much clearer fashion than here an used. Such intent for two suits —one in thirty days to “establish” the lien and the other within a recovery order bond—in to obtain an ultimate unlikely except very so ruled as a to be out last option effect, would, provision impose, resort. Such at landowner, approximately limitation of unconscionable thirty rights days genuine all mechanic’s material- periods years man’s lien applicable his holder to as contrasted with simply to other actions. The landowner would have give to file a bond and thereof. After that lien holder notice bring thirty would have suit to “establish” his lien within rights or lose all both to his and under bond. Under construing difficulty the circumstances find we little the word “establish” and its attached comma to mean “establish and.” question phrase in would read “to then establish en- establish, force or foreclose” instead of “to enforce or foreclose.” The result is that the claimant file no suit at all need thirty days in order to maintain an action on the bond. It makes throughout, preserves pur- the statute consistent its dominant *6 186 harsh that would highly results
pose the unusual and avoids otherwise obtain. wit, case, Dealing principal point now with the notwithstanding the right petitioner sue of the throughout assignee claim being of the
bank collateral argue indeed, force may, one-year period, one assignment chose that, generally speaking, of an entire con action, from a written latter does not arise even when the Stats.), passes 568-570, (see Texas Civ. tract' Arts. Vernon’s assignee, accord legal and that equitable title both the name of maintained in ingly can be a suit on the claim brought by actually or at behest assignor only where it is so Cage Co., See, & assignee. example, Amsler v. D. S. for of the Ry. R. 669; G. v. Ft. Worth & App., Texas Co., 247 S.W. Winn Civ. 593; Independent-Eastern App. 33 S.W. Texas Civ. 377; see Herrington, 2d 95 S.W. Torpedo v.Co. Ry holding A. P. Co. Antonio & San also the alternative App., 2d 842. wr. Co., Texas D. M. Picton Civ. & logical think, may be, it more we er. refused. However only, assignment security the as that, in the case of an hold own name to signor predicate a suit his title to has sufficient as a tolling on the claim statute of limitations the extent of whole. interest, the collateral
Certainly in the sense of beneficial
the owner of
assignor
a one than
has a title —no less valuable
mortgages
pledges
physical chattel,
it to another.
who
securtiy
in the
interest
is but
interest of the secured creditor
long-
were,
example, a
If
one case as in the others.
the chose
given
after a
date
corporate
up
not
to but
term
bond convertible
to at-
corporation,
comes
stock of the
into common
greater
dur-
the face
the bond
than
tain a market value much
ing
assignee
security
surely
would
period,
the conversion
assignor
of not
matter
responsibility
have some
refusing
forfeiting
of the bond
deliberately
the extra value
privi-
conversion
prior
it
to convert
lege,
or sell
assignee
matured.
assignor’s
not
debt to
if the
even
responsibility
the obvious
only explanation for such
And
assignor
bond.
owner
is a beneficial
one that
retained interest
that the
doubt
there be
Nor can
pass
otherwise, is one that will
chose,
pledgor
of a
written
inter vivos.
inheritance,
a transaction
will or
chattel,
pledgee,
physical
pledge of a
case of a
In the
having
possession,
control,
and thus in effect
of the chat-
tel,
assignee
chose,
is in much the same situation as the
aof
particularly
tortiously destroyed
where the
chattel
or dam-
*7
aged misappropriated by
party
a third
and is
in a sense
thus
against
converted into a chose or claim
the tort-feasor. While
appear
there
many
do not
involving
to be
decided cases
such a
situation,
evidently
pledgor may
rule
is that
himself
against
tort-feasor,
maintain an action
at least to the extent
recovery may
that his
exceed the amount of the secured debt.
Law, Security,
Restatement of the
Comments, pages
Sec. 38 and
117-119;
Restatement, Torts,
see also the
220, pages
Sec.
563-
565;
Jur.,
33
“Pledges,”
16,
Texas
and cases
Sec.
cited.
As
mortgages,
to chattel
substantially
the rule seems to be
the same.
Jur.,
Mortgages,”
See 9 Texas
71,
“Chattel
Sec.
cases cited.
involving
decisions
pledges of
in
choses
action are like
few,
wise
involving
and we find none
the statutes of limitation
as does the instant
Satterlee,
case. In
(a
Simson v.
cision in East Texas Fire Ins. v.Co. suggest language that such a suit to be of which does assignor parted all treated one who has presented in in that was not interest the chose. The issue case preliminary instant case the so- fashion as was done *8 the matter of pleas called in and did not involve abatement judgment problem final had limitations. The actual was whether upon chose, properly pledgor rendered in been favor actually by the fact that the latter was held in the face of the assignee, party court not a to the suit. The collateral who was proceed judgment would to stated to allow cause recovery subject or cause him either the defendant double again assignee sue. defend the same claim if the should While to holding assignor judgment un- not in effect that the could have circumstances, that “the der the the court remanded the case so may required parties steps in the case as take such prosecution.” inference from this its further The authorize assignee if, following remand, disposition were is that suit, rather than party, still the same made a the suit would suit, course, it the same of limitation would a new one. If were any trial more than on the first. not it on the second bar argument appel- In in this and in their briefs oral Court Appeals, respondents-defendant lees in the Court Civil sought justify trial of the case have court’s dismissal ground question in was invalid the lien because petitioner-plaintiff comply with the formalities failure of the required statutes, fixing corresponding such liens. although point that, this con- note at this should doubtless We tention is, generally speaking, relevant to the count yet it has no presupposes which the existence of valid apart against bearing count Bluff from on the alternative Creek Obviously petitioner-plaintiff or and the lien. might supplier a valid claim Creek other have although, goods it at the price furnished and services time, having as the re- lien for reasons such not valid being merely urge. spondent-defendant purpose clearly liens, has on a its no effect lift asserted execution independently claim to the extent that the letter asserted liens and of the bond. hearing suggest pleas
The record on the does doubts respect portions validity of the lien substantial that a substan- the claim. The affidavit and exhibits indicate portion supplied prior tial of the materials were to four months filed, before the lien affidavit was while another item of “serv- August 23rd, $875.00, ices from viously 1950 to October ob- Moreover, quite appears testimony indefinite. contiguous, that no two more the leases were while the particular affidavit and fail exhibits to indicate to lease leases, general proportion, and in what items of the account mentioned item above further item $875.00 expenses per day $370.00,” of “car at were al- $10.00 — testimony largely locable. oral Kelley, the case was that of was respondents-de- who called as an adverse witness fendant, particulars and does not deal with the account. As case, indicated our earlier outline of trial court evidently questions, did not consider judg- these but based his expressly upon points, ment Appeals other the Court of Civil doing Actually, pleas likewise. properly pleas none of the were abatement, pleas bar, they but rather since all went to the necessarily mrits and disposition involved final of the case petitioner-plaintiff, Kelley, pointed if sustained. As *9 McDonald, out 7.16, in (Vol. p. 634) Texas Civil Practice Sec. Zarsky Moss, in as App. decisions such Texas Civ. history, 2d no wr. of er. defenses “in bar” are not the proper subject disposition preliminary matter of on mere hear- ing abatement, although pleas before the like speedy court in judgment may and final be obtained on the basis of matters in bar parties formality merits, without the aof trial on if agree so process summary recourse is had judgment prac- where contested present. fact issues are not The misnaming plea tice of procure preliminary in in bar order to plea trial as confusing if the were in one abatement and not encouraged. to plea invalidity being The bar, of the lien in one and the court, having trial dently as Appeals, well as the Court of Civil evi- considering it, justified refrained from we feel in not ruling upon ourselves, particularly since it was not substan- this tially developed the trial find obstacle to in court. We petitioner-plaintiff court the trial view the failure of the Appeals point in bar to raise the that matters of Civil Court respon- fact that the not considered or in the further should dents-defendant, appellees below, did seek to sustain as ground invalid. judgment that the lien was court on raising trial propriety adjudicating are not ourselves hearing We the merely error, as a consider it fundamental go Ap- opinion of the reason not to peals behind Court Civil point which was judgment in order sustain its been, not, considered the trial court. and should not have not, application error does of Bluff Creek for writ of matter, only course, this it is concerned deal with since part judgment Appeals re- of the Court Civil against count versed the trial of the alternative court’s dismissal apart bond: Bluff Creek from lien and Ap- propriety of this latter action of the Court Civil peals theory question final case. The was court’s against appellees pleas “the in abatement related suit invalidity noted, validity As heretofore bond.” petitioner- such, bearing right the plaintiff has no Moreover, personal Bluff Creek. action being ambiguous, prepared pleas are we not somewhat say Appeals that the of Civil construction them Court was incorrect. entire case—both
The result of our conclusions is Company and the count on the its Creek Oil Company, alter- surety, and the Insurance Commercial Standard personam against Company alone Oil Bluff Creek native count trial the merits. court for be remanded the trial —must Obviously consideration issues on such a trial will take into judg- opinion. The in the of this what we have decided course reverse Appeals is so ment of the of Civil Court reformed dismissing count on the bond of the trial court in and is otherwise affirmed. sitting. not
Associate Justice Greenhill January Opinion delivered Norvell, Calvert, joined by dissent- Justice
Mr. Justice *10 ing. majority plain, positive and nullifies the opinion of
The 5472c, unambiguous provision thirty-day of Article V.A.T.S. Moreover, majority’s its of the statute clouds construction validity in considerable doubt. respondent by majority to the filed as one
The refer attempted petitioner “for release of the to fix under lien” which 90, Chapter object 2 of of bonds filed Title and state that under Article 5472c “is to free land from liens substitution security surety indemnity of a af- bond for the otherwise unpaid mechanic, forded the or contractor materialman under 2, 90, Chapt. Title 1925.” I submit that these R.S. statements general language are much too and is much too broad. There filing provides the Article which that the bond shall operate to release the lien or to free the land from the lien.1 Any analysis begin recog- correct 5472c must with Article nition that statutory there is a difference between constitutional differently
liens and that the statute Will ate oner parties compliance them. As noncompli- it between the or statutory with provisions ance validity affect cannot self-executing arising under section 37 of Article 16 of Constitution, interpreted State Article 5472c were substituting effecting a bond for the or as “a release lien,” “freeing lien,” or as land would be Strang 1056; Pray, invalid. Texas 35 S.W. Farm- Taylor, ers’ and Mechanics’ Nat Bank v. 40 S.W. 876, 966. In the field of constitutional Article liens 5472c should rights pur- operate only protect therefore held to provide chasers or lenders and to mechanic materialman security complies pro- additional for his he with the debt if provisions visions of the statute. How do the Article operate rights statutory of claimants liens ? The answer question requires analysis pro- a more detailed of its visions. statutory payable to the lien claimant or his as- signees pay conditioned that the will obligees “the amounts liens so claimed them with proven all costs in event same shall be liens on such
property.”2 provided It is then in section 2 that when the bond required has been filed and the notice and return have been registered Records, “any purchaser in the Mechanic’s Lien ¡bond language provided 1.—Contrast Article 5472b-1 which it is discharge attempted filed thereunder “shall release and all fixed or liens to be filing fixed of said or claims.” claim —Emphasis throughout. pay added bond in this case is conditioned to amount against the lien all “in claimed and costs the event such lien shall be established property, legally established, and in the such lien event be not then this bond shall be of no force and effect.” *11 192 bond, and return notice may rely upon record of such
lender absolutely property any and shall acquiring in said interest protected thereby.” be obligation pay the amounts is to
The the bond proven only same shall be liens and all costs “in the event the liability predicate for on the property. As to be liens” on the a necessary “proven” that the claims be it therefore becomes bond necessarily property. It follows or “established” liens on the to be property on is a to a claim as a lien suit establish setting plea up by any limitation, and statutory a barred statute is interposed, a proven to be lien” the claim cannot “be property. on the Legislature prescribed,
In 4 Section of Article 5472c the period language, plain emphatic limited a definite and filing property as when suits to establish claims liens opening statutory is in the Section filed. The sentence any court reads: shall or maintained “No action establish, any lien re- lien or claim of to enforce or foreclose brought within to in days shall be ferred such bond unless pro- thirty thereof as herein after of notice service language positive imposing period a of limi- vided.” That is as (Limita- language any Title 91 as is the Article of tation tions) interpose thirty-day legal right of our statutes. The to claimant plea of the lien and thus to defeat an effort “establish, claim of lien ac- to or foreclose” his lien or enforce crues, statute, property, as owner. under owner bond, right interpose plea in in which The the a suit on liability, necessary establishment of the lien is incident corporate signer principal also as to the owner and the accrues surety property on the In this case the bond. owner defense, plead thirty-day statutory did not limitation as a owner, or his lia- either to the establishment of the bility surety on the bond did. on the but the plea trial The was sustained in and court’s prescribes judgment. a second The second sentence of Section period of limitation. The sentence reads: “After such service, and at time date such within one holding making party sue such claim of brought upon after shall such bond bond but no action interpose plea period.” legal right of such accrues to the of limitation based the second sentence (the obligors property owner-principal on the and the cor- bond; porate surety) liability does not accrue to defeat owner, owner, property defeat the lien. plain clear to admit of dif- quoted are too sentences meanings. meaning They are not not doubtful. ferent Their They conflicting. deal need room for construction. There separate separate causes of action for each period provided. sue limitation is If lien claimant fails to *12 thirty-day period, any by him thereafter within the suit filed “establish, subject lien enforce or foreclose” his claimed is plea though to a property even limitation owner effort is fails made to recover If the lien claimant bond. to file thirty his suit sues to recover on thirty-day period, within one he of the liability must establish his an incident subject and his suit plea to a surety, either or both. majority, guise statute,
The construing under have simply unambiguous plain, written provi- one of the clear and sions, way in no other, in conflict or inharmonious with the out ground statute. It has been out on the written that the ma- jority can why Legislature think no sound reason should required suits, have periods limitation, two with different when encompassing one suit subject matter of both and with period but one purpose of limitation would serve the as well or suggest respectfully better. I type that this of construction does regarded violence to what have heretofore been as sound rules of statutory Robison, 272, construction. See v. 114 Texas Weaver 133; Arnim, 268 309, 66; S.W. Simmons v. 110 Texas 220 S.W. Philadelphia Love, 376, Fire Ass’n. of 101 Texas 108 S.W. 158; Highway Bl’d’g. Texas Commission v. El & Paso Const. Council, 857; Trades fining 149 Texas 2d S.W. Col-Tex. Re- Texas, v.Co. Railroad Com. of 150 Texas 240 S.W. Love, In Fire Insurance Ass’n. v. 108 S.W. court, permissible this court said: “It is not no matter opinion might policy what its or of be of the of the enactment justice effect, opinions of its to substitute its own with re- gard plain clearly to such matters for the stated intention legislative department.”
There are a host of other decisions this court to the same effect.
Perhaps appropriately the rule is no where more stated Robinson, supra, applied case than in to the instant Weaver v. (268 133, 141) : where it is said Legislature may why prescribed has this meth-
“Some ask by the land com- used od rather than the one of advertisement the better one. think the latter’s method missioner. Some may say why should not land be there no reason sold Some But, again forfeited. when for sale before has been offered language, Legislature spoken plain there is no room has Nor, circumstances, are the courts under the for construction. justice policy of the enactment concerned with of its effect.” strengthen the emergency Act not clause of the does weight contrary to the con-
majority’s it lends action. On the plainly Legislature precisely what it so meant clusion that saying requiring and had sound reason it. said in suits both emergency clause reads follows: great many liens are filed under “The fact that a claims or unjust provisions Chapter known said amounts purpose creating apparent and liens on and for the clouds *13 when, fact, exist, delaying property in owners in titles none bring- financing long temporary loans and often loans with time otherwise, ing necessary, which, not about foreclosures would *” * * emergency create etc. being Legislature If, found, great many claims were the purpose unjust” in the of filed amounts “known to and for creating when, fact, exist,” requirement that liens in “none the “establish, promptly foreclose” the suit be filed enforce or to the claimant claimed lien and to establish the bona tides of thus By filing casts the the landowner becomes understandable. bond demonstrating by prompt on the lien of claimant the burden losing unjust penalty not that his is on of claim not might protection the lien the the otherwise afford but bond Moreover, filing surety by and itself. the of the suit the put of mechanic on the bond are on that the claim the or notice good prepare they in and must materialman is made faith that statutory by to thirty-day period If defend it. suit within claimant his is demonstrates that claim good thereby preserves his still made in bring and lien he must faith look to suit one if he to bond within wishes payment. interpretation statute works This Legis- statutory liens, hardship As to claimant. having given first instance has the same lature power the lien away. provision By thirty-day Article
to it take clearly away Legislature expressly taken has 5427c lien when the statutory if is filed notice is served suit promptly establish, or the lien is not filed. to enforce foreclose has prescribed period claimant If suit is filed within the security may for satisfaction of the bond to which he look year. of his claim he suit thereon within one if files appears purpose The real been to facili- the statute to have sale, exchange mortgaging property to tate free protect acquire property therein. those who or an interest given interpretation accomplishing here statute aids in purpose. statutory that has filed one wish- When been ing purchase property money lend on it will know safely by that he do so is filed the claimant of a no suit statutory prescribed he lien within the time. If the suit is filed protected will know that he is the bond. rights persons
There are no case. third involved this only question rights parties to be determined relates to testimony asserted debt lien. The adduced on the trial meager is far too peti- whether the lien determine asserted is, part, Davis, tioner whole or in constitutional lien. Ball v. 2d 1063. But whether the lien asserted right statutory my opinion constitutional or recovery suit, petitioner the bond was lost file failure thirty days filing establish, after notice of enforce or the lien. foreclose agree holding
I majority with the that the case should right be remanded petitioner’s to the trial court for trial of judgment against Bluff Creek for the amount claimed of his debt, holding spite assign- and as well with their petitioner ment of the claim owned such an interest therein as *14 justify bringing of suit his own name and thus to satis- fy requirement brought that suit on bond be one year. “establish, But because no suit was enforce or thirty days, plainly foreclose” the claimed lien within re- quired by 5472c, Article I would that the lien was lost hold recovery that therefore can there be no on the bond under count plaintiff’s petition. one of the
Opinion January delivered 1958.
Rehearing February 19, overruled