29 S. W. 51, writ denied as to attorney's fees); but it is not necessary for us to decide that question, and we do not express any opinion with reference thereto. But so far as the indebtedness to Franklin is concerned, evidenced by the 26 notes, no valid lien exists against the property, since that debt has been paid in full. In Colleps v. Lumber Co., 185 S. W. 1043, it is said:

built the house, and that prior to the execu-, v., Texas B. & L. Ass'n, 8 Tex. Civ. App. 500, tion of the instruments mentioned he had an agreement with Franklin with reference to the matter, and all of the terms of the contract were agreed upon between him and Franklin, how the notes should be handled, and how the material should be furnished and paid for; that Franklin was not able to buy the lumber and material to build the house; that Herring furnished the lot, and the Barber Lumber & Mill Company furnished all the material and paid the contractor; that the contractor's pay roll was paid each week; that the contractor did the work on the building for a specified amount, and when his work was finished the Barber Lumber & Mill Company paid him the balance, after having paid all his labor while the work progressed; that no lumber or material was furnished before the papers were executed, and no money was furnished before the material and lumber were furnished.

If the appellees are entitled to judgment of foreclosure of their alleged lien it must be on the theory that they complied with the terms of article 5631, Vernon's Sayles' Tex. Civ. Stats., which provides in part:

"When material is furnished, labor performed, erections or repairs made upon a homestead, if the owner thereof is a married man, then to fix and secure the lien upon the same, it shall be necessary for the person or persons who furnished the material or performed the labor, be

fore such material is furnished or labor is performed, to make and enter into a contract in writing, setting forth the terms thereof, which shall be signed by the owner and his wife, and privily acknowledged by her, as is required in making sale of a homestead."

"There is only one way known to the law by which one who furnishes material or labor homestead, to fix and secure a lien upon the for the erection of, or labor made upon, the same," that is, by complying with article 5631, supra.

It has been held that an express agreement in a mechanic's contract that he shall have a lien upon the homestead as provided by law will not create a lien until the re-. quirements of the statute have been complied with. Cameron v. Marshall, 65 Tex. 7; B. & L. Ass'n v. Logan, 33 S. W. 1088. In the absence of such contract, those who furnish labor or material to the contractor have no lien of any character. Colleps v. Lumber Co., supra, and cases there cited. See, also, Ellerman v. Wurz, 14 S. W. 333, in which the Supreme Court says:

"To obtain and fix the material or mechanic's lien authorized by these provisions, the prescribed requirements must be strictly followed and complied with."

A deed of trust on the homestead, which does not show the contract, or the consideration, although duly executed by both husband and wife, does not create a lien on the

homestead under the statute or under the

The Constitution of the state of Texas Constitution. Walker v. Woody, 40 Tex. Civ. (article 16, § 50) provides in part:

"No mortgage, trust deed, or other lien on the homestead shall ever be valid, except for the purchase money therefor, or improvements made thereon, as hereinbefore provided, whether such mortgage, or trust deed, or other lien, shall have been created by the husband alone, or together with his wife."

App. 346, 89 S. W. 789, writ of error denied. "No lien can be fixed, and no foreclosure had, upon the homestead by an implied written contract or by an express oral contract." West End Town Co. v. Griggs et ux., 54 S. W. 904. While the decision of the Court of Civil Appeals in this case was reversed by [1-6] It will be noted that in the contract the Supreme Court in 93 Tex. 451, 56 S. W. 49, between the Herrings and Franklin, the Her- yet the reversal did not affect the soundness rings bound themselves to pay the contractor of the announcement by the Court of Civil "$1,200 in cash, and the balance in twenty- Appeals quoted above. A deed of trust on a six monthly installments," etc. Whether this homestead to secure the payment of a note $1,200 was the estimated profit of Franklin is invalid, there being no contract in writing under the contract, and the $1,049 evidenced for work and material, even though the by the 26 installment notes was intended money secured on the note was afterwards to cover the material and labor items, we are used for the purpose of improving the homeleft in doubt, except so far as light may be stead. Girardeau v. Perkins et al., 59 Tex. shed through the testimony of Barber, but Civ. App. 552, 126 S. W. 633, writ denied. the two $600 notes were not executed to There can be no lien acquired under this Franklin, neither did he have a lien to se- statute upon a homestead by a materialman cure the payment of the same. According who furnished the material, not to the ownto Barber's 'testimony, Franklin did not ers of the property, but to the builder who furnish the material or pay for the labor has contracted with the owners, unless such expended on the erection of the building. It materialman has complied with the provimight be a question whether under article sions of the article. Gilmer v. Wells, 17 5631 a lien could be fixed on a homestead Tex. Civ. App. 436, 43 S. W. 1058, 1060, writ to secure the payment of a contractor's prof- denied. Appellees cannot claim a lien by it on the contract (see Summerville v. King, virtue of a contract between the Herrings 98 Tex. 332-341, 83 S. W. 680; B. & L. Ass'n and Franklin, for under this contract Frank

which no lien was retained by him, and $1,- existence after the improvements were made. 049 in notes, all of which has been paid. The * * * The power of a husband and wife, in reference in this contract to the two $600 the manner prescribed by the Constitution, to give lien on homestead, by express contract, to notes does not disclose that said notes were secure payment of indebtedness incurred for given for material or labor. to be expended, work or material used in constructing improvenor does the evidence show how much, if ments on the homestead, is made clear by the any, of the $1,200 was so expended on the trust deeds, which can exist only through conConstitution, which speaks of mortgages and homestead. Moreover, the notes were not tract. *** The contract husband and wife given to Franklin, and therefore Franklin must make before lien for work or material used would not be entitled to a lien to secure the in improving their homestead can exist under the statute need not state that it is the intent same. Under the deed of trust given for the to give lien to the contractor, and such a benefit of the lumber company no contract is statement might not defeat the right of a conset out by the terms of which it is shown tractor to fix and secure the statutory lien; that the debt therein attempted to be se- the parties evidences intention thereby to give but when the agreement or contract made by cured is for improvements on the homestead. lien, then lien exists by force of the contract, It cannot be held that a mere reference to and may be enforced under the rules applicable the contract between Franklin and the Her- to such liens. *** A contract made under rings in the deed of trust given by the Barber such circumstances ought to be sustained, unless in violation of express law or contrary to pubLumber & Mill Company created a lien in lic policy. There was no law in force expressly favor of the company against the homestead. prohibiting such a contract." We are of the opinion that the court erred in adjudging that the appellee herein had a valid lien upon the premises involved, and in granting the foreclosure. The judgment of the trial court is reversed, and the judgment here rendered for appellant.

Reversed and rendered.

On Rehearing.

It is urged that the case of Lippencott v. York, 86 Tex. 276, 24 S. W. 275, is an authority for the proposition that a husband and wife may by contract fix a lien on the homestead for labor performed thereon and material furnished, independently of any statutory provision. We do not so understand such decision. By reference to the questions certified, especially to questions 2, 3, 4, and 5, it will be noted that the Supreme Court made a distinction between liens created by law under article 16, § 37, of the state Constitution, such as mechanic's liens, materialman's liens, etc., and liens created by contract. After quoting article 16, § 50, of the Constitution,

the court said:

"This section of the Constitution, while it operates as a restriction on the power of a husband and wife to impose charges upon the homestead, recognizes their power to do this by mortgage, trust deed, or other lien to secure payment for work or labor used in constructing improvements upon it; and in the absence of legislation declaring the only mode in which this may be done, no good reason is perceived why it may not be mortgaged to secure a debt contracted as a debt must be to bind the homestead for labor or material used in improving it."

After quoting article 16, § 37, of the Constitution, and discussing the same, the court further said:

"Liens by contract take effect from time of execution, and have no retroactive effect as to third persons. Mechanics' and like liens, when fixed and secured, as to the improvements made, will be given priority over a mortgage or like lien existing on the land at the time the facts occur which give right to such lien; while a lien created by contract solely will attach to improvements subsequently made on the land covered by the lien, and will not give way to a junior lien of the same character coming into 203 S.W.-10

In

By reference to the first question contained in the certificate, it will be seen that the contractor who erected the improvements complied with the requirements of the law as to the fixing of the mechanic's lien, and that said contractor, while said mechanic's lien was in force, assigned the debt, together with the lien, to a third person, to whom the husband and wife executed a deed of trust upon the homestead, which was privily acknowledged by the wife, and that the husband and wife executed to the assignee certain notes, and that such assignee agreed with the husband and wife to extend the original debt and lien for a period of years. The question propounded was, Did such deed of trust constitute a valid lien upon the homestead? this case the mechanic's lien was fixed on the homestead, and the only question involved was as to whether under the contract described between the husband and wife and the assignee the extension of the debt and lien would invalidate the lien against the homestead. To the question propounded the Supreme Court answered in the affirmative. Under the statute as it then existed the mechanic's lien given the contractor by law would have ceased to be operative if suit had not been brought to enforce it within 12 months after it was fixed, although the debt secured by it was still valid and might be enforced through a personal judgment. Acts of 20th Legislature, p. 114, § 17, of said act. In regard to the liens created by law, irrespective of contract, it was held that it was necessary to enforce them in the time and in the manner required by the statute; while, on the other hand, it was held that the husband and wife might, by an express contract complying with the requirements of the Constitution, extend the lien so fixed by the contractor, and that it might be enforced in the time and manner specified by the contract. We think this is the full extent of the holding in the cited case. The statute, as it was then and as it is now, and the Constitution require that in order to fix a lien upon

See

the homestead for work and material used | County. From judgment for plaintiff, dethereon the contract shall be in writing, and fendants appeal. Affirmed. executed by the wife in the manner and form required in making a sale and conveyance of a homestead. The statute then required, as it does now, that such writing executed by the wife must contain the terms of the contract.

McLean, Scott & McLean and W. P. Walker, all of Ft. Worth, for appellants. Capps, Cantey, Hanger & Short, of Ft. Worth, for appellee.

BUCK, J. [1, 2] This is an injunction suit against the tax collector and other nam

them from enforcing the collection of the taxes assessed against the real estate and personal property of All Saints Hospital, alleged to be an institution of "purely public

The appellees' counsel urges that it would be unjust, even unconscionable, to deny appel-ed officers of Tarrant county to restrain lees a recovery in this case, since it is insisted the facts show that appellees furnished all the material, paid for all the labor going into the improvements, and that it is admitted that the Herrings only paid $1,049, with in- | charity," and therefore exempt from taxaterest thereon, leaving unpaid on the contract price the amount of $1,200, represented by these two $600 notes. But the Constitution and the statute require certain things to be done and certain steps to be taken before a lien can be fixed on a homestead owned by a married man. The directions are plainly given so that he who advances his money, furnishes his material, or expends his labor may be protected. If he fails to follow the directions, he must bear the consequences. The courts are powerless to help him. It is not a question of equity so much as it is a question of compliance vel non with the constitutional and statutory requirements. Motion for rehearing is overruled.

tion under the statutes and the Constitution of the state. Plaintiff having abandoned its prayer for injunctive relief as against the collection of the taxes on its personal property, and having offered to pay the same, and the court having entered judgment against it as to the taxes on its personal property for the years 1915 and 1916, and having granted the injunction only as to the taxes on the real estate and the improvements thereon for said years, the one question presented by this appeal is: Do the facts show this appellee to be such an institution as under section 6, art. 7507, Vernon's Sayles' Tex. Civ. Stats., is exempt from taxation, and as further authorized under section 2, art. 8, of the Constitution of Texas? Article 7507, § 6, reads as follows:

"All buildings belonging to institutions of

SCOTT et al. v. ALL SAINTS HOSPITAL. purely public charity, together with the lands

(No. 8829.)

(Court of Civil Appeals of Texas. Ft. Worth. March 30, 1918. Rehearing Denied April 27, 1918.)

1. TAXATION 241(2) - EXEMPTIONS-STATUTE "PURELY PUBLIC CHARITY."

A hospital organized by some members of a church parish, having the general purpose to provide for and nurse sick and destitute persons, to which all persons in need of treatment were freely admitted whether they could pay or not, though such as were able to pay were expected to do so, as the hospital had no source of revenue other than such fees and donations to it, was a "purely public charity" whose land and buildings were exempt from taxation under Vernon's Sayles' Ann. Civ. St. 1914, art. 7507. § 6, and Const. art. 8, § 2.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Purely Public Charity.]

2. TAXATION 251-CHARITIES PURPOSE OF CHARGE-SUFFICIENCY OF EVIDENCE.

In suit by a charitable hospital against the tax collector and other officers of the county to restrain them from enforcing the collection of taxes, evidence held not to show that the charge made by the hospital against patients financially able to pay was made with a view to profit, but rather that it was made to carry out the dominant purpose and general beneficent design of the founders of the hospital.

belonging to and occupied by such institutions not leased or otherwise used with a view to

profits, unless such rents and profits and all moneys and credits are appropriated by such institutions solely to sustain such institutions and for the benefit of the sick and disabled members and their families and the burial of the same, or for the maintenance of persons when unable to provide for themselves, whether such persons are members of such institutions or not. An institution of purely public charity under this act is one which dispenses its aid to its members and others in sickness or distress, or at death, without regard to poverty or riches of the recipient, also when the funds, property and assets of such institutions are placed and bound by its laws to relieve, aid and administer in any way to the relief of its members when in want, sickness and distress, and provides homes for its helpless and dependent phans of its deceased members or other per

members and to educate and maintain the or

sons."

Without undertaking to set out any considerable portion of the testimony in the exact words of the witnesses, we think the evidence adduced establishes the following state of facts: The institution had its origin in the minds and hearts of some 15 charitably inclined ladies, members of Trinity parish, Ft. Worth, Tex. They felt the need in the city of a hospital where the sick among the

Appeal from District Court, Tarrant Coun- poor could receive careful nursing and skillty: Bruce Young, Judge.

ed medical treatment, such as would not be Action by the All Saints Hospital against available to such indigent persons in an inMarvin Scott and others, officers of Tarrant stitution run for profit. These ladies as