Thomas Trammell & Co. v. Mount

Citations

• 68 Tex. 210
• 4 S.W. 377
• 1887 Tex. LEXIS 667

Syllabus

<p>1. Mechanic’s Lien.—The lien of a mechanic for material furnished, who procures the material for the construction of a building, can not be defeated by reason of its delivery in accordance with the wish of the owner of the house at some other place them where the house is being erected. After such material is prepared for the building, though it be not delivered on the ground, that fact will not defeat the lien for its value, if the mechanic, being ready to deliver at the bftilding, is prevented by the owner of the improvement, who violates his contract and refuses to receive it.</p> <p>2. Same.—The lien of a mechanic, though not fixed before registry of the contract or bill of particulars, yet when it is fixed relates back to the ' time when the work was performed or the material furnished, and takes precedence of all claims on the property being improved, which have been fastened on it since that time.</p> <p>3. Waiver—New Trial.—A party who permits without objection a witness to testify who has not been sworn, thereby waives all objection to his evidence based on the failure to swear him.</p> <p>4. Same—Equity.—In foreclosing a mechanic’s lien, when the original owner of the house and a purchaser under attachment levied after the mechanic’s lien was fixed, are both made defendants, the decree should direct that whatever remains from the proceeds of sale, after satisfying the mechanic’s lien, should be paid to the purchaser under attachment.</p>