Lyon v. Ozee

Willie, Chief Justice. Ho bill of particulars of the lumber furnished by Lyon & Gribble to the appellees was ever recorded, and hence no lien, as in case of verbal contracts, was fixed upon the building into which the materials went, or the lot upon which it was situated. The claim of lien is based upon the notes executed by Ozee and wife, and their registration within six months after the debt for the lumber became due. The first note was cancelled and there is a conflict in the evidence as to whether or not the second was made [97] and recorded within six months after the money for the lumber became due. But, if recorded within the time prescribed, no lien was thereby fixed upon the premises. It has been held by this court that the written contract to be filed for record to secure a lien of this kind, is one by virtue of which the material has been furnished, and not any subsequent contract entered into between the parties in respect to the matter. Reese v. Corlew, 60 Tex., 70. These notes were confessedly made long after the material was furnished, and the house, into the construction of which they entered, had been built and had been occupied by the appellees as a place of residence. Moreover, from the date of its occupation by them, the house and the lot upon which it stood became the homestead of Ozee and wife, and this, we have seen, was previous to the date of the notes. Our Constitution, art. 16, sec. 50, requires that, to create a lien upon a homestead for work and material used in constructing improvements thereon, these must be contracted for in writing, with the consent of the wife given in the same manner as is required in making a sale of the homestead. It is clear that the consent of the wife must precede the purchase of the material. Lumber is not contracted for by the wife when it is bought and placed in a buildinS without her consent. The intention, doubtless, was to have the wife consulted as to the character and price of the improvements to be placed upon the homestead. The legislature, correctly interpreting this section of the constitution, provides that the wife must sign and acknowledge the written contract at the time when such improvements or repairs are to be made, thereby avoiding contracts executed after the improvements and repairs have already been made. This court held in the case of Taylor v. Huck, 65 Tex., 238, that a lien created by a note given for material furnished in the erection of a house upon a homestead was invalid, if the note was executed after the material was furnished. The attempt in this case was to create a lien upon the homestead, by contract, for material furnished to improve it, in a way other than that prescribed by law, and the constitution declares all such attempted liens void and of no effect. The court did not, therefore, err in refusing to foreclose the lien, and the judgment is affirmed. Aeeibmed. [Opinion delivered April 20, 1886.]