Miner v. Ownby, 53 Tex. 224

Miner v. Ownby

53 Tex. 224 | Tex. | 1880

Bonner, Associate Justice.

The evidence in this case shows, that on June 1, 1874, appellees Moore & Ownby fur*228nished appellant Miner material and labor expended thereupon, of the agreed value of $625.56, to be used by Miner in repairing and improving his homestead house and lot, the same being community property, and he being a married man and the head of a family.

Judgment was rendered for Moore & Ownby, and enforcing the mechanic’s lien.

Under the evidence, the question in the case is this:

Did Miner, without being joined by his wife, under the act of November 17, 1871, to provide for and regulate mechanics’, contractors’, builders’ and other liens (Pasch. Dig., art. 7112), have the power to so contract for material and labor to repair and improve the homestead as to subject the same to such lien?

Our mechanic’s lien, as it is commonly called, is created by law and not by contract, except so far as the contract may furnish the basis to fix and secure the lien by the subsequent act of the party interested, by filing record and notice under the provisions of the statute. Although Miner, by the express terms of the contract here sued upon, attempted to create the mechanic’s lien, yet this part of the contract may be considered as surplusage, as the lien must derive its vitality by virtue of a compliance with the statute, by Moore & Ownby, and not by the contract to that effect, by Miner.

In accordance with this view, it was held in Gaylord v. Loughridge, 50 Tex., 571, that in a case not embraced within the statute, the husband alone, without being joined by the wife, could not create a lien in the nature of a mechanic’s lien upon the homestead.

. That case, however, is quite different from the one now before the court, in this, that in this suit, both the party invoicing the lien and the subject matter of it, are within the terms of the statute.

By section 4 of this act, the lien can, in a proper case, be created upon the homestead, which shall be secured and enforced as in other cases. Pasch. Dig., art. 7115.

*229There are good reasons of public policy which should prohibit the husband by improvident acts, from so encumbering an existing homestead as to subject it to forced sale without the consent of the wife, and thus permit that to be done indirectly which he could not ordinarily do directly, and this policy doubtless caused the restriction to be placed upon the exercise of such power by him alone, in art. XVI, sec. 50, constitution 1876.

Ho such restriction, however, was placed upon his power by the previous act of the legislature now under consideration, and we are of opinion that under the provisions of that act the husband alone, as the head of the family, could in a proper case, in a bona fide transaction, where there was no intention to defraud the wife, so contract for material and labor to improve the homestead, not the separate property of the wife, as to make the claim therefor the basis to fix and secure the mechanic’s lien thereon. This was so indicated in the case of Tinsley v. Boykin, 46 Tex., 599.

Affirmed.

[Opinion delivered April 16, 1880.]