Warren v. Smith

44 Tex. 245 | Tex. | 1875

Gould, Associate Justice.

The statute regulating mechanics’ liens does not provide in what way the wife’s separate estate may become subject to the lien for improvements thereon. (Paschal’s Dig., art. 7112, et seq.) No reason is perceived why the statute regulating marital rights and in what cases the wife’s separate estate may be made liable should not control the creation of a mechanics’ lien on her estate: (Paschal’s Dig., arts. 4643, 4644, 4645.) This conclusion seems to be in accord with the current of authority in States where there are statutes regulating the manner of charging the wife’s separate estate and when the mechanics’ lien statute has no special provisions on the suhject. (Phillips on Mec. Liens, secs. 98, 99, 100, and references.)

The author just cited says: “There is no conflict of authority as to the proposition that in order to charge the land of the wife she must be either expressly or by implication the employer.” (Id., sec. 101.) Under our statute repeated decisions have fixed the rule that to make the wife’s separate property liable for a debt, it must be contracted by the wife herself or by her authority. (Magee v.. White, 23 Tex., 180.)

In the case before us, whilst the court submitted numerous special issues to the jury, there was no issue submitted as to whether the improvements were authorized by Mrs. Warren or not. The verdict ascertains the fact that the lot was her separate property, and in the absence of any finding to the contrary, the building which was on the lot before the addition which gave rise to this suit was made must also be treated as her separate property. The decree directs the sale of the entire building, and in so far as it affects'Mrs. Warren’s separate estate is not authorized by ' the findings of the jury.

It is proper to notice some other questions raised, and which may occur on another trial.

The account or contract, as recorded, contained a sufficient description of the lot and improvements, and a sufficient specification of the items of indebtedness. The statute must receive a reasonable construction, and we cannot think the lien was lost because it was impracticable to serve a copy of the bill of particulars on Burns.

Reversed and remanded.

[Chief Justice Roberts did not sit in this case.]