MECHANIC'S AND MATERIALMEN'S LIENS
AND
THE IRVING DECISION
JOHN KEITHLY
. - 'UBIo1: -OF COBDllII8
page
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..IBOEPTION • •. • • • • • • • .• • • • • • • • •
II .. BOT ICE "• . • ' • . ' . • . ' . e' ~
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OWNERSHIP • • • • '• • • • • • • . , •
DISTDICTIOli BET..- LIPS ~ • • • ._
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'V. . NEW STATU.Tl!: • . • • •.,. . . . • .. ., • • • • • • • ' . . • • •
:':0
l}
In the recent case .ot IrvinS Lumber Company v. Alltex
·Morts8fie Company, Inc. 1 the Supreme Court heard a question
a
concerning the relative status ot
materlalmen's and mechanic's
11en,
a vendor~s lien, and ·a- deed
ot trust. Tbe court handed
.
.down it.a opinlon 1n 1971, bu.t seyeral months later on rehearlng
~
ltreversed lts posltion; the holdlng ln the latter oplnion
turn1sbes the toplctor th1s paper as lt relatee to the pr10rltl
ot materialmen's and lIIechanlc' 8 1.l ens ln Texas.
A sUIDIII&rY ot the tacts ln Irvlns,supra is as tollows:
Merult HOllies, lntendlng to erect bousea, executed a contract
tor the purchase ot land; . thereatter on Aprl1 27 and July 2,
..
1964 Merult Homea entered lnto an oral contract with Irvlng
Lumber COIllPany to turn1sh labOr and materlal necessary to the
oonstruction ot bousea on tour lQta.On July 8. 1964 Meru1t
HOllies acqulredt1tle to the lots and
s1l11ult~eously
arranged
tor a loan trom Alltex, mortgagee, to tlnance the cost ot the
land :tor .'0,000 wh1le the rema1n1ng .,27,000 was to be used
tor contemplated
1~provelllents
on the lots; a deed ot trust wae
· executted to All tex to ev1dence the . debt and a note . secured by .
·subregation to the seller's vendor's l1en waa taken.
Irv1ng
·timely pertecte' a mater1aIlllen';s and mechanic's :L1en by statutory aft1dav1t on
~ovemOer
4, 1964.
: material .turn1ahed on July. 1965.
Work wasatated and
Meru1t thereafter became
insolvent and detaults' on 1ts contraot with Irv1ng according
· to the note and deed ot trust wlthAlltex.
Alltex toreclosed
1ta de.4 of trust by.xere1sing 1ta power ot sale; subsequently
· Irv1ngbr1ngsel.l1t to entorce 1ts
l.1~n ..
1 .
It. pr10rity contest .nsud
with the outcome resting on when Irving's lien
ha4
its
~1n­
oeption".
Irving oontends that .its lOan ha, its inception on the
o.at& of its oontraot with Meruit Homes
and
should be superior
tc? Alitex's dee.. of trust; ltfurther argue. that the llen
created by the deed Of trust was foreolosed b, the power of
sale g1ven by the deed of trust.
Irving stlpulates that the
vendor's 11en to wh10h AlltWoK was subrogated ls superlor to
themechanlo's 11en.
Alltex contends that the meohanlo's 11en
had ltslnoeptlon subsequent to the
reoor~ation
of the deed ot
trust at the time oonstructlon effort. began, and argues that
the deed ' of trust. sale foreclosed both t.he 4eed ot trust. and the
vendor's 11en thus ext1ngU1a)dng Irvlng's meohanlo' s and mat":'
erialmen '.s 11en.
I
Artlo1e 54592 is one of the approplate statutes control';;'
1ng prlor1 ty because it controls the time of lnceptlon ot tb.e.
meohan1c's and mater1almen's 11en, and prov1des as follows,
"The 11en hereln provlded for shall attach to the
.house, bul1d1ng, lmprovemer.ts or ral1road for whloh
they .ere furn1shed or the work done, ln preference
to any pr10r lien or encumbrance or mortgage upon
the land upon which the houses, bulld1ngs or 1mprovements, or ral1road have been put. bl'\ ~.labozt~
performed, and the person enforo1ng the same may
have suoh house, bu1ldlng or 1mprovement, or any
p1eoe of the rallroad property, sold seperately;
provlded, anyllen, enoumbrance or mortgage on the
.land or lmprovement at the t1me ' ofthe inoeptlon
of the 11en herein provided for shall not be affeoted thereby, and holders of ,such lien8 need not. '
be partles ln sults to foreclose 11ens hereln prov1ded tor. 1I
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'
.
.
.
The st&tuteglve • .prlorlty .to· II&terlalmen's ..1I mechanlo's
2
' 11ens over all '11ens exoept those " on the land or improvement
•
at. the time ot t.he . incept.1on"ot the meohanic's and material. men's liens..
'l'l:l! ori teria tor priori t1 ie the time ot inoepJ;>-
tion.
In 1.886 the SU'prelle Oourt held in- Fagan & OsgoOd , v. BoyM
Ioe Maohine 00.3
that it was not the reoordatlon required
by the law but the law ltself which gave a materialmen's and
meohanio's 11en; in the language of the court. ~th. record of
proP&r,ty~
the oontraot dld not th!Jrefore. newly enoumber the
but fixed .and s.e oured upon 1 t. an exlsting 11en.·.'
The "relatlon baok" dootrine was first laid down ill.. 18~7
in the oase of Trammell ' y. Mount. 4 and 1 t beoame a fundamental
ooncept ln the asslgnment of ' pI'lorl ty.
The Supreme Oourt .
' stated the dOctrlne as follows:
It
The lien of a mechanl.c , though not flxed before
record of the oontraot or bill of particulars,
when it ls 1'1xed , related back 'to the tlme
when the work was performed or the mat'e rlal
furnlshed, and hence takes precedence of all
claims to the property improved whlch have-been fastened UpoI;l lt sinoe that time. ~'
Thus lt 1s obvious that a mechanic's 11en relatee baok 'to the'
date :the work was performed or the materlals furniehed, and
ha$PI'lorlty overall clalms attaching after that date.
The next slgn~tloant oa~e. Or1ental ' Hotel ~ Co. v. Grifflths,5
-
."'
•. j
extends the "relation back" dootrine
when lt dealt with the
"
.
. .I" "
6
legislatlve change of the word uaocural' ' - as lt existed
to the
'
word "lnoeptlon" ln the ourrent' Btatute; Artlcle 5459. 7
In
'
,'
•
,deoiding the quest~on the supreme , Oourt restated its polioy of
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'
iiwral construction ,ot ilt.&tut.eafo.rtlie purpose of protecting
la~~~s and lIIa~erl~meD~ and. *&,14 , 'Olm ,t hei 1'o,lloving sign1tl-
cant holding:
"liens ot laborers and materialmen, when per-
fected, will relate back to the date ot their "inoeption";
the date of "inception" is not necessarily the date on which
the labor was pertormed or the material was turnished as per
. :r~ .. ~~ ~e
thediotum in Trammell v. Mount;~the date ot execution ot a
· oontraot for ereotion of all lien8 tor labor and material
neoe.ssary to oompletion of the building or improvement.
The oourt in Oriental Put to rest the question ot when
.,the lien at,t aches .with these words:
"The word "inception" means "initial stag.e "-- It does
:not refer.to a state of actual existence, ·but to a
condition of things or circumstances rrom which the
.thing -maT develop. When the bUilding has been proJected, and construotion of i ·t entered upon, this i8,
contracted for, -- the' circumstances exist out or
which all future contracts for labor and material
neoessary. to its cOlllpletion may arise, and for.-' e.ll
such labor ana material a common lien is given by
the statute: and in this state of oiroumstances the
lien to seoure each has its "inoeption".
The Oriental decision was thought to be:' resti-1oted to the
faot situation where a general , as distingUished ·. from a spec' itic oontract, was necessary to support the ' "relation back"
doctrine, and the court or civil appeals so held in Irving,
·the first decision by ' the Supreme Court in Irving, although
now overturned, dispelled this in holding that a general conUni8
Security Lumber Co . was
tract is not neoessary. for appllcaticm of the dootrine.
versity Savings
& Loan
Association y.
oited as authority for this oonstruction; this recent decision
,
held that any oontraot for materials or labor is sUftioient 't o
support the "relation baok" lioctrine.
The beat evidence for 41aregar41ng. the 1L2!0t contract
are the words of the Supreme Oourt ln the lnltla1 lrvlng 4eolalon,9 to wl t:
"We dld not hold ln McConnell v. Mort~ase lnvest.ment Co.
&1 Paso, 157 Tex. 572, :3 5 S.W.2d 280
(1957), ,t t a general contract between allen
:, c1almant. and an owner 1a neceasary for appllcat.lon ot the "re1at.lon back" doctrlne. The
, bestevldence that we dld not 40 so ls that we
reserved that
questlon ln
hi
II
Alltexmlght rely on the rule ln McOalien v. Mesu1 Produclng
' &:
Ref. 00. 10 for the propoaltlonthat an lnnocent moJitgagee
wl thout notlce wlll out oft the rlghts ot a prlor llenholder;,:.
Thls case standa 'for the genel'f.1 rule that i f
&
prlor llenho1der
tal1s to record hls 11en he allowa aubaequent partles to rely
tothelr det.rlment on exlat.lng faot.a that. remaln undlscloaed lue
:to hia fallure 'to record; the prlor llenho1der ls therefore ' S'sat.opped from assert.lng his auperlor
mechanlc's 11en agalnat.
-,
,
,
a subsequent. mortgage. wl thout. not.lce:_
1t
Natlona1 Western Life
Insurance 'v, Acreman. ,",'
ThiB general -ruie does not st.and ' agalnat·,the rule applled
t.o
the
type of altuat.lon present.ed ill the Irvlng caae; ln the
case of Keatlng Implement &: Machlng 00. V. Marahall X1ecUrc &:
POwer 00. 12
the Supreme Oourt. aald:
NWlt.hln the Perlod ot tlme allowed by the atatute
. tor the 11en to be flxed by belng recorded, we
think that every ' peraon deallng wl th ' the property
18 charge' with notice of the ex18tence of tl,ie llen."
tinder thla rille Alltex la oharge" with notloe o'f thematerlallien' a and mechanlo',a' l1en.1he reaaonlng beh1Dd thia rille :aeema
5
to be that slnoe the 11enholder ls dolng all that 1. requ1red
by law he should not
~orte1t
h1. rlght merely beoause he fa11.
to fl1eh1. aft&4avlt before another 11en attaohe ••
~e
rule
as 1a1d down by the Xeat1M oourt requ1res a mortgagee to asoertaln whether or not any labor or mater1al h". been fUJmlshed;
11'. 1s 10gloal to aply a duty unller the ilre1at10n back" dootr1ne
to inqulre lnto the p08s1blllty thIPot a oontraot had beenenterea
'lnto whioh would oreate a 11en.
It 18 lnoonoelvable that All-
tex d14 not ,have aotual ,notloe ot ' a 11en 81aoe they loanea ' the
money for the lmprOvementa.
III
The established rule in , tlxlng llen prlorl ty betweea dlfferent
lnterests ln the property ls the maxim--," tlrat ln
In , rlght."
tlme~
flrst
Hammann v. H.J. MoMullen &: O~.e The 1n1tlal b-
, ols10n ln Iry1p6statedl
"It was 1Dl111ater1al that no materlal was furnishe,
.or work cODllllenceca before the deed. ot trust had ;
been recorded. It 1s a180 lDl111ater1al that Alltex mlght not have had notlce of the oontraots. ~I
The Supreme Court also sa14 in Sulllvan &: 00. v. Br1quetta
,Coal Co. 14 that, "the r1ghts ot the partles ln this oase are
' f1xe~ ,
by the statutes, 'and cannot be d18po.ed ot upon any sup-
posea. equl table grouni ".
,
wnen rehear1ng the IrylDS oase the maJorlty op1n1on ln
the SUpreme Court makes this statement, to 1111'.:
',' nthe prl0rl ty of a , seour1ty interest ls not
.determined on the Ilate of the , "lnceptlon", of
an agreement betweell. the oontraotor an' it.
prospeot1ve owner".
:
.
,
Ho , authorlty 18 eatallliahed tor this proposlt1oll., rather the
6
court ignores long stan4ing authority. trom various Civil Appeals Courts whioh ho14 exaotly oontrary.
Do 4ecisions trom
these courts mean anything?
Texas law'5 has require. that oontraots must ariae between
..a oontraotor and a "owner"
ot the land betore a meohanio I •
lien will attach:
"Any person or firm, lumber dealer o.r oorporation,
.artisan, laborer, meohanio or suboontractor who
may labor or furn1sh mater1al, machinery, f1xtures,
or tools-- or who may furnish any material for the
construct1on or repair of any railroad with1n this
atate under or by v1rtue 'of a contract w1th the
owner, - owners, or h1s or their agents, trustee-upon oomply1ng w1th the provisions of th1s Chapter
shall have . .a 1:ien on suohhousEi--~ . (emphas1s
added)
.
In
the Schultz! v. Alamo Ice &: Brewims 00. '6 ~l!I.se ~ the
tem "ownElr"' waa 'oonstrued, an4 it was held that a meohanic' s
.
.
and materialmen's' oontraot made before the "owner" has acquire4
title crea,t ee' a. me'ohan1o's and mater1almen I s lien i t title
is later acquired in the land.
The C.C.A. made the following
observat1on in .Breckenridge City Club v. Hardin: 17
"There can be no reasonable oontention that the
.purohase of . the ,lots was not 1n oontemplation
at the time of the Ordero! the mater1al, and
1nequ1ty, the final aoquiei.t ion oftitle . related back ··aiiIiCexlst.ed at ' the 'time of the contract for , the purchase of ' the material-.. " ·
It is well , recognized authority in Texas ,t hat. ·a ' lien may be
subsequently . perfetited even thoUgh at the time '.. the contract
for the construction
is made , thE! purohaser1s ,not the
.'
.
of the.,land • • but is onl y a
p~spective
owner.
Also.' see Enlow
20 ' ·
.
.
-.
"
' 9'
v. B~wn 18 and Sprowles v . YoungblOOd.
.
The oase of Nasterson v. BUrnett.
.
' .~
.
i'owner~'
"-
relied on by the
.
maJoritY ' oEl ' the owership question. ia , distinguishable on the
, facts; it involved a Judgement debtor. the loan and the deed
of trust wers given ae partial consideration for the exchange
of property. and the holding :Of the court related to a vendor'.
lien -- not a deed of trust.
There is another line of cases that must be distinguished
from the Schultze type case.
,
21
In Sheer v. Cummings
the court
held that a prospeotive or optional purchaser of land 'who contracts for improvements and then does not later acquire the
land oannot be an "owner" via the statute; a materialmen's and
•
meohanic's lien wi11 attach to a transaotion when the prospective
owner does in fact become the owner
late~
because
he has the
'status of "owner u • but the lien will not attach to a prospective
owner who does not complete the purohase,lmea
eQmplete \he transaotiea.
in Irvins
cite~
ss aeee ftet later
The majority opinion on rehearing
Macallan v. MegulPr9ducing & Refining Co.
as
authority; ths problem arises becB;uae the ,Macailen court cited
the Sheer case line of casea for the proposition that a per,son
,
I
with an option to purchase 'can never be an "owner" under the
statute.
The MaCallen case holding pertained to a fact situ-
ation where the person did acquire the land
la,~ 'Elr,
, ..
while in the
~
",
Sheer case the person did not aoquire the land later.
In the
MaOallen case the liens held to be prior to the alleged ' mechanio • 8'
llens were purchase money vendor's liens, not deeds ot trust.
The majority opinion in the second Irving opinion also
relied heavily on National
~estern
Life Insurnace Co . v. Acreman;
the Acreman court made, the same mistake by
.
'-
miscons~ruing
the
~.
Oriental holdi"ng. whl.oll"lI&e squarely grounded on the SchultZe,
. ;"
~: '-:<:" :
.
,.~
.
"i-
in- that the Oriental '; oa,s e "claas1fied the per80n as an " "owner~'
8
under the Schultze rule which stated that if the prospectlve
' owner later acquired title to the lana he could. be a "owner"
under the statute.
The Acreman case is also distinguishable
on the facts; 1n that oase !!! the money borrowed was to be
app11ea to the purchase prioe of the land alone.
At the ver,
least the reason1ng 1n the MoCallen ana Acreman aec1sions leave
something to be des1red.
The McCallen oase oited Galveston ,
Exhibition ,Associat10n v. Perkins 2 to support the oontention
that a person holding an option to purohase land is not an
"owner" unaer the law of Texas.
Again, the GalVeston oase only
held that a person oould 'not be treated as an
he did not thereafter purchased the land.
"owner~'
only if
On rehearing the
Supreme Court should have distinguished the Sheer line of
cases, or ignored or overrule,a the MoCallen and Acreman oases;
the court's failure to ao so has left the law unolear in this
important area.
The Schultze oase was citea by the MaCallen court as
authority on an
notio~issue,
.
and correctly so, but the court..
"
"
failed to mention :..the Schultze rule,-- a person with an 'ppt10n
to purchase land who, as a matter of faot, later does 80
meets
the definition of "owner" in a manner suffioient to establish
a materialmen's
.
an~
.
mechanic's lien in Texas.
It is true that
Texas courts have not helcl. that a lien arises with the acquisition of the land, but only that prospective owners were to
..
be t.reated as ""owner,s " at the ' tiine the contract was "ntered
into;, this seems to be the manner in whioh tne
and Brechenridse C1tY Club v. Hardin
:O &S86
Enl~w
v. Brown
were conetrued"
This would necessarily lead to the conclusion- that Irving
Lumber Compal!lY' s mechanic's and materialmen' 8 lien was pr~or
in time to the dee4 of trust.
The Schultze, Enlow, and Breok-
enridge reason1ng areln oomplete aooord.
IV
Alltex (lender) is subrogated to the original vendor's ,
lien by operatlon of law when purohase money 1s furnished.
case also holds that
Harveson v. toungblOOd. 23 The Haryeson
;
a claimant who contracts with a mere prospective owner cannot
obtain priority over a vendor's lien which encumber's the
property wben transferred.
Irving Lumber Company recognized
that a mechanic's or materialmen's endeaver is charged with
notioe of a vendor's lien at the inception of the meohanio's
and materialmen's lien in accordanoe ' with Schamberger Lumber
Co. v. Holbert,24 and does not contest that the vendor's lien
has priority over their mechanio's and
ma~erialmen's
lien.
This ls ,r easonable slnoe the vendor's llen is part of the , or19inal owner's title and was on the lana at the time the materialmen ' or meohanic entered into his contraot; oonsequently
a vendor's lien is always superior to a subsequent meohanic's
and materialmen's ' lien In accoraanoe wlth Article 5459, but
can the same be- satt a deed of trust?
On rehearing the
!£I-
ing court refused to recognize money borrowed was secured 1n
part by a purchase _money 'ebt, and in part for the improvement, thue creating two distinct lians.
The oourt 1n9laas y. Pallas Homesteaa & Loan Aseooiation25
Sl.
Recognized 'a difference between a mort,sage wbich the mortgagor
. uses partly as purchase money ani a purchase money mortgage.
Tiffany, The Law of Real Property. 26
In the Irvina oase the
loan was only partly used a8 purchase money, ani this jlth the
ol!lvlous knOWledge of Alltex.
Tho elaes court said that . a me-
chanio's lien has priority over a mortgage that is exeouted
after the liens inceptlon; the mere faot that the purohase
price of the reallty was pald out of the loan does 'not give the
mortgage priority •
. . The majority oplnion in the seoond op.1.nlon ill the IrvinS
oase".r elied hBav1ly on the Aoreman decision to support the
holdlng that -the deed of trust has superior1ty over the materialmen • sand mechanio I s l1en slnce the deea
0 .1'
truat was given
to S8cure the payment of the purohaBe money. In Acreman the
entire loan was deliverei as purchase money so, of oourse, the
deed of trust haa status as a pa»ohase money lien; 1n Irvina
the oourt quoted thls portion of the Acreman opinion:
"The lien created 'by the deed of trust is im.pressed by the character of the iniebtedness
for which it was given to secure. This is
the general~ule in this sta.e as well as
elsewhere" • . (other portion 01' quotation omi tt.ed)
•
It must be correot thon to say that the .127,500 used for improvement is
attac~4
follows that the
to the ieeal. of trust.; necessar1ly it
'l~,OOO
ueed for purohase money oonnects to
the vendor's lien, and the l1ens are seperate.
I don't see
how, in' the next breath, the oourtoan merge the l1ens when,
by operation of law Alltex la subrogated to the existing . venal.or' e/llen turnishiJigpurohase money &ooorcl1ng .to Haneson,
11
~upra.
The only thing the Acreman case held was that
& dee~
of trust given to seoure the payment ot purchase money tor
land gives pr10rity to mechanic's ani
material~en'8
liens by
way of subrogatlon to the vendor's 11en.
The minority opinion in the Irvins case oontends, and
rightly so, that the appllcable rule ls stated in W.O. Becher
27
Land &,Mortsase Co. v. Taylor, to wit:
"The rule is famlliar and well settled that
.one paylng on behalf ot another the price of
land or part thereOf, & llen exlstlng in
,favor of the vendor, is entl tleli to be sub..
rogated thereto; where the payment is made '
under agreement wlth the vendee and , upon . a~ ,
understandlng express (deed of trust) or
J .mpl;ied, , that the ~ lien shall;)be retained as
securlty for the money advanced; and where ,
the amount is in excess of that securei by
the vendor's llen, ~he party is subrogated
to the extent of the amount of the llen."
The general rule as quoted above from Acreman was first
set down in the lanamark case of Thompson v. Litwood 011 &
28
Supply Co. ; ln that oase the deeliof trust 11en arose solely
,trOin purohase money.
It is oontrary to' this rule to hold
that a 'deed of trust arislngfrom the 1127,500 used to pay
for lmprovement would be lmpressed as a purohase money dee4
of trust, but the Irvlns oourt held that the deed of trust is
lmpressed wlth the , $10,000 portion ot the loan out of a total
of $137.500 .
Under the lrvlns rationale an lmprovement llen can never
galn initlal prlorlty simply beoause ".t ls oreateli at the same
instant title is acquired as 1s the vendor ' s llen; the IrvinS
deolslon seems unJust. , A P.OO,OOO loan
,
. o:a.n gain initial
..
priorlty if tlO is us•• torpurohase money 80 long as the loan
l~
is
made ln conjuctlon wlth and
10n of the land.
e1multane~usll
~ ,-tk
. . the acqlslt-
lrvlns also results ln the lnterests of the
materlalmen and mechanlcs 10slng secirity in favor of finance
lnstitutions; many courts have state' a po11cy of l1beral
il:Qnstructlon of the statutes for the · purpose of protectlng
laborers and materlalmen as a matter of publlc pollcy.
The slmple and equltable solutlon ln IrvlnS ls to deal
wlth the questlon of splltt1ng prlorltles ln 11ens created by
a slngle transactlon ln a slngle lnstrument; the court care. fully sklrts thls solutlon, to wlt:
"thls case does not justlfy seperatlon anei ass.l gn.ment of cllfferent prlorltles between a v.enilor' .s
11en and the llenhol'er's rlghts unaer a deed of
trust where they come lnto belng by a slngle 1ns trument-- " •
With~ut
explanatlon the Supreme court, and all Texas courts,
refuse to sanction splitting under any clrcumstance.
The
majOrity of other states do, in fact, allow splitting as demonstrated by the court in Joseph v. Donovan 29 whlch recognized
splitting as necessary and fun'amenta1 ln holding that to glve
' prioritywhen money 1s a4vancecl tor both purchase ani lmprovement for a mortgage gives an unjuat preterence to one pa·r ty
. over the other.
v
It appears, at least to thls wrltter, that the first decision in Irvlns was legally and technically correct, but the
outcome caused great turmoil and specu1at1on in Texas land
transactlons, thus necessitatlng a seconi decision and eventually a bl11 passed by the legislature re-ordering anc! clarlfing the statuI ot mechanic's and materla1men's liens in Texas.
Ar.new b111 was enacted suppl1mentlng .A rtlcle 5459 30 0n May 17,
1971; thls artlcle provlde' that "lnceptlon" shall take
plac~
·a ccordlng to one of three thlnga, whlchever shall happen flrst:
(1) commencement of vlalble constructlon or dellvery of materlals whlch
~e
vlslble on the job slte, (2) racor.atlon of a
wrltten agreement for the constructlQn of lmprovement or part
of lmprovement or a wrlttenagreement to perform labor, furnlsh
materlal, or provldeapeclally fabrloated materlal, or (3) 11'
the
cont~act
ls oral the recordatlon
of an affldavlt statlng
,
that the clalmant haa entered lnto an oral contraot.
Thls stat-
ute places a auty on the cODstractor to provlde for the lnceptlqn of hls 11en under (2) ana (3) to fl1e a wrltten agreement
oraffalill '11 t pr10r to work-, but 1 t also provldes for a more iefinate seOllrlty agalnst the sort of fraud that could be .perpe;"
trated ln an Irv1nS sl tuatlon.
In the future 1 t wl11 be far ."
easler to determlne whether a mechanlc's and materlalmen's 11en
exlsts at any glven tlme on any glven tract of land.
The amenam.at left
~o
problems unsolved. the statute dld
not speak on the questlon of whether one contractor's 11en wl11
relate back to the date of h1s own contract or to the date of
. the flrst contract on the land, ani wl11 this also apply to subcontractors.
The ,second crl.t lsm of the statute ls that lt does
not answer the queatlon of whether a recordatlon of a contract
. wlth a prospectlve owner wl1l allow a 11ento attach; lt may be
lmplled that slnce the amenament does · not· requlre a contract wlth
an 'owner i that the
leg1s1a~lve
intent 1a ln harmony with the flrst
oplnion ln the Irvins case; thia interpretatlon aeems to produce
the most des1reable ' result.
14
1 •
~
o. v Alltex Mort
Tex. Clv. App.-- Da
on other grounds 468
• •
Inc. ,
, writ
341
· 2 • • • • Iex. Rev. Civ. Stat. Ann. art. 5459 (1958)
-
-
&: OsSood v. Boyle Ice Maohine 00., 65 Tea •
(1886)
Fa~an
. 3 •• • •
32
2l~
4 • • • • Trammell v. Mount, 68 Tex.
4 B.W. 377 (1887)
.5 • • • • Oriental Hotel v. Gtltfiths, 88 Tex. 574, 33 S.W •
652 (1696)
.
.
6 • • • • Tex. LaWB 1885, ch.
of Texas 683(1898)
I 1, at 64, 9 H. Gammel, Laws
= =
=
7 • • • • Tex Lawa1889, ch. 98 I 8, at 112, 9 H. Gammel, Laws
of Zexas 1138 (1898), amended as Tex. Rev. C1v. Stat.
~~. art. 5459 (1958)
-
'.'
v. Se urit
8 • • • •
£2.. •
9 •
IrvinS Lumber Co. v. Alltex MortSase Co., 14 Tex.
· ..• Sup.
Ct.J.
3, 1971)
212 (Feb
10. • • • MoCallen v. Mosal Producins &: Refinins Co •• 257 S.W.
91B (Tex. C1v. App.-- Calveston 1923. dsm'd w.o.J.)
11. • •
•
12. • • • Keati
S
&:
ower Co ••
13. • • • Hammann v. H.J. McMullen &: Co., 122 Tex. 476, 62
S.W.2a 59 (1933)
.
14. • • • Sullivan &: Co. Vi Briquette Coal Co •• 94 Tex. 307.
63 S.W. 307 (190)
,
..
.
15.
e·
•
e
Tex. Laws 1889, cb. 98,
R 1,
Law of Texas 1138 (1898),
at 111, 9
t'X'
a.
~ammel,
~v. :iV • .!tat~~n.
art. 5452 (1959)
16. • • • Schultze v. Alamo Ice &:
236, 21 s.W. 160 -(1893,
Br.Wl~
.:AO
wr t)
00 •• 2 Tex. elv. App.
17 • . • • • Breckenridge City Club y. Hardin, 25' S.V. 873
(Tex. Clv. App.-- 1923, No writ)
18. • •• Enlow v. Brown, 357 S.W.2d 608 (Tex. Oi'9'. App.-1962, no wrlt)
20.
• •
• ~~~~~~~~~1.:.+.~2:~ ..S.W.2d
' 879 (Tex. C1v..
groun4e)
. ' Ii
•
Masterson v. Burnet~, 27 Tex. Civ. App. 370, 66
s.W.go (1901, error ref'd)
.
21 • • • • Sheer v. Cumm1nSs, 80 Tex. 294, 16 S.W. '7 (1891)
22. -• •
23. • • • Harveson v. Youngblood, 38 S.W.2d 781 (Tex. Comm'n
App. 1931, Jdgmt adopted)
24. • • •
~~~~~~~~~~~~~o~l~b~e~r~t,
34 S.W.2d 614
1 31, no writ)
v. Dallas Homestead & Loan Association, 83
· '. . Claes
Tex. 50, 18 BoW. 421 (1892)
461 (3rd ed. 1939)
27.
•
•
e.
WtC. Becker Land & MortSage Co. v. Taylor, 212 S.W.
6 7 (Tex. Comm'n App.-- 1919, Jdgmt ailoptec1)
28. • • • Thompson v. Litwood Oil & Supply CO.( 287 S.W. 279
(Tex. Clv. App.-- Waco 1926, no writ)
29 • • • • JosePh v. Donovan, 118 COIlm. 80, 171 A. 24 (1934)
-
30 • • • • Iu. Rev-. C1v.Stat. Ann. art. 5459 I 2 (aupP. 1972)
- - -