Taylor v. H. J. Huck & Co.

Citations

• 65 Tex. 238
• 1885 Tex. LEXIS 341

Syllabus

<p>l. Homestead—Statutory Lien of material-man—Lien by contract—F. T. and L. T., husband and wife, executed to H. & Co. their joint promissory note for $1,221.00, reciting therein that the amount for which it was given was for a balance due to payees for lumber and material furnished in the construction and repair of their homestead and hotel situated on lot Ho. 2, block Ho. 5, in the town of Goliad, Texas, and that the note constituted a builders’ lien on the property until paid; which note was duly acknowledged and recorded. In a suit by H. & Co. to recover on the note and to enforce their lien on the property,—Held:</p> <p>(1) That, in view of the recitals in the note, the presumption, in the absence of proof to the contrary, is that the property was the homestead of the defendants.</p> <p>(2) That the material having been furnished prior to, and not in pursuance of the contract upon which the suit is founded, the note did not create a lien upon the homestead.</p> <p>(3) That, independent of the mechanic’s lien which the law creates, such a note as the one described would constitute an express lien by contract, enforcible, except as against the homestead.</p> <p>2. Lien on property yet to be acquired—Equity—One who has in contemplation the purchase of property, may by contract impose a lien which will be valid in equity, and will attach as a charge upon the particular property as soon as he acquires title thereto.</p> <p>3. Cases approved—Mitchell v. Winslow, 2 Story, 620; Wright v. Birchee, 72 Mo., 179; Butterford v. Stewart, 79 Mo., 216; Morrill v. Noyes, 56 Me., 458, cited and approved.</p>