Phelps v. Edwards , 52 Tex. 371 ( 1880 )

Bonner, Associate Justice.

The statute under which Edwards, the defendant in error, claims a lien on the machinery furnished by him to Ward & Dewey, gives such lien both on the machinery furnished and on the laud with which it'is necessarily connected. (Paschal’s Dig., art. 7112.)

The question does not necessarily arise in this case, as to what are the respective equities of a previous vendor of improved lands who retains his lien for the unpaid purchase-money thereon, and of another party who subsequently furnished material, machinery, or fixtures by which this property had been improved, and which was so connected therewith that they could not be severed without permanent injury to the freehold.

This judgment subjects the machinery only which was furnished by Edwards to be sold to satisfy his lien, and not the land and the improvements which were previously placed thereon.

The machinery thus furnished seems to have been necessary to the successful operation of the sugar-mill, purchased by Ward & Dewey from Phelps, plaintiff in error, and it does not appear but what it was of that character of fixtures which a lessee would have a right to remove after the expiration of his lease; or but what Phelps still has the same security for his debt which he had at the time of his sale, and that conse-' quently his rights are not affected.

[Opinion delivered January 9, 1880.]

To hold, in such a case as this, that the lien of one who furnishes machinery to another necessary to make available his property, should be subordinate to the lien for the unpaid purchase-money for this property, would, we think, he in restraint of trade and against sound principles of equity.

There being no apparent error in the judgment below, the same is affirmed.

Affirmed.