Summary
stating materialman's lien cannot be defeated by proof the buyer used part of the material for other purposes
Summary of this case from Addison Urban Dev. Partners, LLC v. Alan Ritchey Materials Co.Opinion
No. A-398.
Decided February 14, 1945. Rehearing overruled March 14, 1945.
1. — Community Property — Husband and Wife.
Property purchased during the married life of the husband and wife is presumed to be community property even though the deed was taken in the name of the wife, there being no recitation in the deed to show that it was paid for with her separate funds or that it was conveyed to her as her separate property.
2. — Mechanic's Lien — Claims and Accounts.
Where material for the construction of improvements on property of owner is delivered by the materialman directly to the owner, a lien for the value of such material accrues to the materialman without the necessity of his filing an account of the claim in the county clerk's office.
3. — Mechanic's Lien — Evidence.
Where owner purchases material for the construction of improvements on his property, a materialman's lien therefor cannot be defeated by proof that owner used a portion of such material for some other purpose.
Error to the Court of Civil Appeals for the Ninth District, in an appeal from San Augustine County.
This suit was filed by Brick Tile, Incorporated, assignee of the Athens Brick Tile Company, against F.K. Parker and others for a consignment of brick furnished to them for the construction of improvements on a certain lot in the city of San Augustine, Texas. For the purpose of fixing its statutory lien, Brick Tile, Incorporated, filed its account with the county clerk of said county. All facts necessary to a decision of the case are stated in the opinion. A judgment for the debt was rendered by the trial court in favor of the plaintiff, but a foreclosure of the materialman's lien was denied, and that judgment was approved by the Court of Civil Appeals, 186 S.W.2d 64. Brick Tile, Incorporated, has brought error to the Supreme Court.
Judgments of both courts against the defendants for the debt are affirmed; the judgments of both courts denying foreclosure of the lien are reversed, and judgment is here rendered foreclosing plaintiff's lien.
S.M. Adams, of Nacogdoches, for petitioner.
The Court of Civil Appeals erred in refusing to foreclose the lien on the property as to Tom Parker, who purchased with notice of the lien, and because there was no evidence to show that the property was not the community property of Parker and his wife. Cook v. Spivey, 174 S.W.2d 634; Epperson v. Jones, 65 Tex. 425.
McAlister Tucker, of Nacogdoches, for respondents.
The trial court having refused to foreclose a lien against the property, the presumption favoring the judgment is that the court found the property to be the separate property of Mrs. Parker. Smith v. Scott, 261 S.W. 1089; Bitter v. Bexar County, 266 S.W. 224; Peavy v. Smith, 250 S.W. 197.
Athens Brick Tile Company furnished brick to F.K. Parker for the construction of a building on a lot in the city of San Augustine, and in due time its assignee, Brick Tile, Inc., duly filed its account therefor with the County Clerk for the purpose of fixing the statutory materialman's lien on the lot and improvements as provided for in Revised Statutes, Articles 5452 et seq. In a suit by Brick Tile, Inc., against F.K. Parker and his former wife, Gladys Parker, and Tom Parker, who had purchased the property after lis pendens had been filed, the trial court rendered judgment against F.K. Parker for the debt, but denied a foreclosure of the materialman's lien. The Court of Civil Appeals affirmed the judgment of the trial court. 186 S.W.2d 64.
The Court of Civil Appeals denied foreclosure of the lien on the ground that the lot did not belong to F.K. Parker, but that it belonged to his wife, Gladys Parker, at the time the improvements were made.
The property was purchased during the marriage of F.K. and Gladys Parker. The deed of purchase conveyed the land to Mrs. F.K. Parker, but contained no recital that it was paid for out of her separate funds, nor that it was conveyed to her as her separate property. The material part of the deed was as follows: "For and in consideration of Twelve Hundred Fifty ($1,250.00) Dollars to us in hand paid by Mrs. F.K. Parker, as follows, Twelve Hundred Fifty ($1,250.00) Dollars in cash paid by F.K. Parker, a receipt of which is hereby acknowledged, has granted, sold and conveyed, and by these presents do grant, sell and convey unto the said Mrs. F.K. Parker all that certain tract of land," etc.
1 Since the property was acquired during the marriage of F.K. Parker and wife, it was presumably their community property, and this presumption prevails even though the deed was taken in the name of the wife, in the absence of language in the deed tending to show that it was purchased with the separate funds of the wife, or that it was conveyed to her as her separate property. Stiles v. Japhet, 84 Tex. 91, 19 S.W. 450; Ross v. Martin, 104 Tex. 558, 140 S.W. 432; Cooke v. Bremond, 27 Tex. 457; Speer, Law of Marital Rights (3rd ed.), sec. 352, p. 428; Connor v. Boyd (Civ. App.), 176 S.W.2d 212.
The deed in this instance recites that the consideration was paid by F.K. Parker. But if the language used should be construed as a statement that the consideration was paid by Mrs. F.K. Parker, the result would be the same, for this would not amount to a recitation that the consideration was paid by Mrs. Parker out of her separate funds. The deed is not materially different from one taken in the name of the husband, which, under well-established rules, place the title in community estate. There is no evidence to rebut the presumption that the property was the community property of F.K. Parker and wife. Consequently F.K. Parker had a right to contract for the material for the construction of the improvements, and thereby authorize the fixing of a materialman's lien on the property for the price of the material furnished.
2 Plaintiff's claim appears to have been properly filed with the County Clerk within the statutory time after the delivery of the last installment of brick. Moreover, the material was furnished directly to the owner for the construction of the improvements, and, under the Constitution, a lien for the value thereof accrued to the furnisher of the material without the necessity of the filing of the account with the County Clerk. Constitution, Art. XVI, Sec. 37; Strang v. Pray, 89 Tex. 525, 35 S.W. 1054; Farmers' and Mechanics' National Bank v. Taylor, 91 Tex. 78, 40 S.W. 876; 29 Texas. Jur. 459. Tom Parker brought with notice of plaintiff's suit to foreclose the materialman's lien on the property. No reason is apparent why the lien for the value of the brick furnished for the construction of the building should not be foreclosed.
3 Parker admits that the brick were sold and delivered to him for the construction of the building on the lot in question, but contends that only a part of them were actually used for that purpose. He asserts that he sold a part of the brick to third parties after they had been delivered. No question of homestead is involved in this case. Since the brick were sold and delivered to Parker for the construction of the improvements, the materialman's lien therefor cannot be defeated by proof that the buyer used a part of the brick for other purposes. Trammel v. Mount, 68 Tex. 210, 4 S.W.2d 377, 2 Am. St. Rep. 479; W.L. MacAtee Sons, Inc. v. House, 137 Tex. 259, 153 S.W.2d 460; 29 Tex. Jur. 488.
The judgments of the trial court and Court of Civil Appeals against F.K. Parker for the debt are affirmed. The judgments of the trial court and Court of Civil Appeals denying the foreclosure of the lien are reversed, and judgment here rendered for foreclosing of plaintiff's lien.
Opinion delivered February 14, 1945.
Rehearing overruled March 14, 1945.