Lignoski v. Crooker , 86 Tex. 324 ( 1894 )

The instruments on which plaintiffs and intervenors base their respective rights, upon their faces purport to give express liens, which under the Constitution may be done even though the property which the material and labor was furnished to improve was the homestead of Lignoski and wife. Lippincott v. York, just decided [ante, p. 276].

It is further shown that the contracts on which plaintiffs base their right were executed by the husband and wife as the Constitution requires, and before the material was furnished.

The liens which they seek to enforce are liens arising from express contract, and not the statutory liens given to persons who furnish material to make improvements; and so far as Lignoski and wife are concerned, it is wholly unimportant whether the instruments were recorded or not.

There is evidence, however, tending to show that the labor performed by the person under whom the intervenor asserts claim was in part, if not wholly, performed before the husband and wife made the contract, and to the extent that this may be true, intervenor shows no right.

If, however, the contract was made before the labor was performed, then intervenor has a valid lien without record of the contract. The views expressed render it unnecessary to determine whether, in order to fix and secure the lien given to mechanics and material men by statute, it is necessary for the contract to be recorded in a book other than that in which deeds or other conveyances are recorded, in accordance with the directions of article 4304, Revised Statutes.

The defendant who purchased the property from Lignoski and wife can not be an innocent purchaser as against plaintiffs or intervenors if he purchased after the contracts on which they rely were filed for record, even if they were not recorded in the book in which they ought to have been.

The statute provides, that "Every conveyance, covenant, agreement, deed, deed of trust, or mortgage in this chapter mentioned which shall be acknowledged, proved, or certified according to law, and delivered to the clerk of the proper court to be recorded, shall take effect and be valid as to all subsequent purchasers for a valuable consideration without notice, and as to all ceditors, from the time when such instrument shall be so acknowledged, proved, or certified, and delivered to such clerk to be recorded, and from that time only." Rev. Stats., art. 4334; Throckmorton v. Price, 28 Tex. 608 [28 Tex. 608]; Kennard v. Mabry, 78 Tex. 156.

The statute further declares, that "Every such instrument of writing shall be considered as recorded from the time it was deposited for record." Rev. Stats., art. 4299.

In view of these statutes, in Kennard v. Mabry it was held, that except in cases in which actual recording is made necessary to fix a right, filing for record operated as notice, and that article 4304 in this respect was directory.

The contracts between Lignoski and wife and those through whom plaintiffs and intervenor claim were admissible against their makers without proof of their execution, for the action was founded upon them, and they were alleged to have been executed by them.

They were not admissible against Creath, the vendee of Lignoski and wife, however, unless their execution was proved, or article 2257, Revised Statutes, was complied with.

The Statute provides, that When any petition, answer, or other pleading shall be founded in whole or in part on any instrument or note in writing, charged to have been executed by the other party or by his authority, * * * such instrument or note in writing shall be received as evidence without the necessity of proving its execution, unless," etc. Rev. Stats., art. 2262.

This rule is by the statute made to apply to endorsers and sureties upon the note or instrument sued on, and to executor or administrator of the estate of a deceased person when the suit is founded on a note or other instrument in writing alleged to have been executed by such deceased person, unless suspicion be cast upon it by affidavit of the executor or administrator. Rev. Stats., art. 2262.

This is the extent of the statute, and it did not authorize the admission of the instruments sued upon against Creath, on averment that his vendors executed them.

For the error in admitting these contracts in evidence over his objections, the judgments of the Court of Civil Appeals and of the District Court must be reversed and the cause remanded.

Delivered December 14, 1893.

ON REHEARING.