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ing should not be discharged within 60 days after the expenditure of the $250,000 procured by the sale of the bonds, then the hotel company should furnish sufficient funds to discharge such liens. The facts clearly indicate that the parties, at the time of making the trust deed, understood that liens superior to that of that instrument might accrue thereafter, and carefully provided for protection against them. The law in force in Texas at that time gave to all persons who might furnish material, fixtures, or tools, or who might labor in the construction of the said building, a lien upon the lands and the building to secure payment therefor. The parties contracted with reference to and in view of the law as it then existed, and must be charged with notice of such rights as might accrue in the course of constructing the building, even if they had not been actually contemplated by the parties. Brooks v. Railway Co., 101 U. S. 451. When a building or other improvement is in course of construction, and any person takes a mortgage on the land upon which such building or improvement is situated, or on the improvement itself, he does so with the knowledge that it may be necessary for the completion of the building that other contracts should be made for labor and material, and it is clearly the policy of this state, as shown by its statute law, that an intervening mortgagee shall not destroy the statutory rights of persons that may be acquired thereafter in the course of constructing such building. The deed of trust in this case expressly reserved a lien upon the building thereafter to be constructed, and it is evident from the facts that the principal security for the bonds which were being sold was to be created by the completion of the contemplated hotel building. If the position taken by the counsel for the Oriental Investment Company be correct, then an intervening mortgagee could arrest the progress of such work, destroy the statutory rights and liens of all persons who might be engaged in the work, and assert a lien by contract which would be superior to that given by the law under which the contract was made. This, we believe. cannot be maintained.

It is claimed, however, that the lien given by the statute (article 3171, Sayles' Civ. St.) does not give priority to mechanics' liens over mortgages and incumbrances existing upon the land or improvements at the time that the work is done or material furnished for which the statutory lien is claimed. To sustain this position reference is made to Trammell v. Mount, 68 Tex. 210, 4 S. W. 377, in which Judge Willie, in delivering the opinion of the court, uses this language: "The lien of a mechanic, though not fixed before the record of the contract or bill of particulars, when it is fixed relates back to the time when the work was performed or the material furnished, and hence takes precedence of all claims to the property improved

which have been fastened upon it since that time." In that case the question was as to priority between the lien of a material man. and an attaching creditor. The only question. before the court was whether or not the material man's lien was prior to that of the attachment, the material having been furnished before levy of the attachment. It did not involve the question now before this Besides, that decision was made under the act of 1885 (article 3171, Sayles' Civ. St.), which reads as follows: "The lien herein provided for shall attach to the buildings, erections or improvements for which they were furnished, or the work was done, in. preference to any prior lien or incumbrance or mortgage upon the land on which said. buildings, erections, improvements or machinery have been put or labor performed. and the person enforcing the same may have such building, erection or improvements sold. separately; provided, any lien, incumbranceor mortgage existing on the land or improvements at the time of the accrual of the lien herein provided for shall not be affected. thereby." In 1889 the legislature amended article 3171, as above quoted, there being no material difference in the language used in the first clause of that section as amended, from that used in the original article. The proviso in the article, as amended in 1889, reads thus: "Provided any lien, incumbrance or mortgage on the land or improvement at the time of the inception of the lien herein provided for, shall not be affected thereby, and holders of such liens need not be made parties in suits to foreclose liens herein provided for." The language of this proviso differs from that embraced in the original article only in the omission of the word "existing," which does not change the meaning of the law, and in the use of the word "inception," in lieu of the word "accrual." In view of the fact that the former act had been by the supreme court of this state construed as fixing the time when the lien began at the date when the work was done or material furnished, and the furtherfact that the word "accrual," as used in the former statute, and upon which that decision must have been based, is replaced by theword "inception," we must conclude that the legislature intended to make a change as to the time at which the lien given by the statute should begin; otherwise, the amendment would have been useless. What is meant by the "inception of the lien," as used in the statute, we must determine from a consideration of the language of the proviso in con-nection with other provisions of the law. The constitution of this state secures to mechanics, artisans, and material men a lien upon the buildings and articles made or repaired by them for the value of their labor done thereon, or the material furnished therefor, and commands the legislature to provide by law for the speedy and efficient enforcement of said liens. Const. art. 16,

§ 37. In obedience to this mandate the legislature has enacted the laws referred to, which will be liberally construed in order to secure the rights guarantied by the constitution. By article 3179, Rev. St., hereinbefore quoted, all liens are put upon an equal footing, and each mechanic, material man, or laborer participates in the lien created by the statute, from the foundation to the final completion of the structure. The man who lays the foundation has an equal claim upon the whole structure with all others, and the man who completes the work has an equal claim upon the foundation with him who does the work thereon or furnishes the material therefor. The lien, then, which is secured by statute extends in favor of each, from the beginning to the completion of the work, and if it so extends and embraces all that has been done from the beginning to the completion, its "inception" must be the time to which it is made to relate in giving effect. The word "inception" means "initial stage." Cent. Dict. It does not refer to a state of actual existence, but to a condition of things or circumstances from which the thing may develop. When the building has been projected, and construction of it entered upon, --that is, contracted for,-the circumstances exist out of which all future contracts for labor and material necessary to its completion may arise, and for all such labor and material a common lien is given by the statute; and in this state of circumstances the lien to secure each has its "inception." Under a statute in the state of Iowa by which the mechanic's lien is made to attach from "the commencement of the building, erection, or other improvement" (Revision 1860, § 1853), it has been held that "all persons furnishing material or labor in the construction and completion of any building, erection, or improvement acquires a lien upon the entire building or improvement, superior to the lien of any mortgage which may be given by the owner upon the lands or improvements subsequent to the beginning of the work on such building or improvement." Neilson v. Railway Co., 44 Iowa, 73; Brooks v. Railway Co., 101 U. S. 443. In Brooks v. Railway Co. it was held that where a railroad was built by sections, and after the completion of one section of the road a mortgage was given and bonds issued, constituting a first mortgage lien upon the entire road built and to be constructed, contractors and laborers who furnished material and labor in the construction of the subsequent sections of the road, and after the record of the mortgage and issue of the bonds, had a lien upon the entire road for the work so done. The reasoning in that case is very conclusive as to the right and justice of this construction of the statute. It is true that the language of the statute of lowa is more definite in its terms than the statute of this state, but we believe that a proper construction of our statute, as above shown, gives to it the ef

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fect that was given to the Iowa statutes in the cases cited.

If the construction claimed by the plaintiffs in error be given to the statute of this state it would result in many absurd and unjust consequences. For example, let us suppose that Griffiths' contract called for the completion of the hotel building, except the portions for which the other plaintiffs furnished material or upon which they performed labor, and that Griffiths' contract had been complied with and the building completed, except the portions last named, and that after this was done, Griffiths' claim remaining unpaid, the deed of trust had been executed, as it was in this case, before the contracts were made under which the other plaintiffs acquired their rights. Now, by the construction claimed. Griffiths would have a prior lien upon the entire building, including all that the other plaintiffs had furnished, either in material or labor, and yet they who furnished the material or labor would have only a second lien thereon, for the reason that the mortgage intervening would take precedence over them. If we adopt the construction of the statute which seems to have been applied by the district court and approved by the court of civil appeals, the result will be, in such case as that stated above, that Griffiths would have his lien upon all the work completed by him, and would be allowed to participate in the proceeds of that which had been added by the other plaintiffs, while they would be denied their statutory right to participate with him in the portion completed before the mortgage was given. Suppose that Griffiths had the entire contract for building the house, except the plastering and painting, and that, before the plastering and painting were done, the mortgage had been given; then the result would be that Griffiths would have his lien upon the entire building, painted and plastered, while the other parties, who did the plastering and painting, and furnished the material therefor, would have a lien, equally with Griffiths, only upon the plastering and painting as it might be upon the walls, wood work, or other parts of the house. Would it be practicable to separate these, in case of a foreclosure of the lien and sale, so as to adjust the rights of the parties in the proceeds of that portion consisting of the plastering and painting? In fact, it would be almost impossible to construct a house of any considerable value, except upon cash payments, without making such complications between the parties as would render it impracticable, if not impossible, to adjust their equities under any such rule of construction as that upon which this judgment is based. When a statute is plain and unambiguous in its terms, and not susceptible of more than one construction, courts are not concerned with the consequences that may result therefrom, but must enforce the law as they find it. But when a statute is am

biguous in its terms, or susceptible of two constructions, then the evil results and hardships which may follow one construction may be properly considered by the court, and it is right that the court shall place upon the statute that interpretation, of which it is fairly susceptible, which will attain the just solution of the questions involved and protect the rights of all parties. Suth. St. Const. § 324. The construction that we place upon the statutes of this state, to the effect that when the erection of any building or construction of any improvement is begun, that constitutes the inception of all subsequent liens, is consistent with the entire body of the statute laws of this state on the subject, preserves the equality of all those who contribute to the construction of the building, and affords an easy solution and just result in case of intervening liens; for it is but just that he who acquires a lien upon property under such circumstances, and seeks to derive to himself the benefits of the improvement to be made, enhancing in value the security thus obtained, should be charged with notice that those who thereafter perform labor upon or furnish material for the completion of such improvement will be protected, under the law. in the liens created by the statute. Brooks v. Railway Co., 101 U. S. 443.

trict court, and that the liens of all the said parties be foreclosed upon the land and the entire building, and the proceeds distributed in accordance with this opinion. It is further ordered that the plaintiffs in error recover from the defendants in error all costs of the court of civil appeals and of this court, and the defendants in error from the plaintiffs in error the costs of the district court.

KRUEGER v. WOLF et al.

(Court of Civil Appeals of Texas. Jan. 8,
1896.)

ALLOWANCE TO UNMARRIED DAUGHTER IN LIEU
OF HOMESTEAD RIGHTS OF SURVIVING UN-
MARRIED DAUGHTER - CLAIMS OF CREDITORS —
PRIORITY.

1. A widow living with and sole heir of
her widowed mother at the time of the latter's
death, is entitled to the homestead or allow-
ance in lieu thereof, under Rev. St. tit. 37, c.
18 (Sayles' Civ. St. art. 1993 et seq.), providing
that the homestead, or an allowance in lieu of
it, shall, if there be no widow, be delivered to
the guardian of the minor children and unmar-
ried daughters, if any, living with the family.
2. Sayles' Civ. St. arts. 1993-1999, 2002,
2007. 2008, give the widow, minor children, and
unmarried daughters remaining with a de-
cedent's family all exempt property, and pro-
vide that, if deceased does not leave the exempt
articles, the court shall make a reasonable al-
lowance in lieu thereof; that the homestead
shall be delivered to the guardian of the minor
children and unmarried daughters, if any, liv-
ing with the family; that such allowance shall
not exceed $5,000, and shall be paid either in
money or in any property the widow or chil-
dren may select at its appraised value; that, if
the estate be insolvent, the title of the widow
and children to the property and allowances
given them shall be absolute, and shall not be
taken for any debts except for purchase mon-
ey, taxes, or improvements thereon; and that
the exempt property other than the homestead
or such allowance is liable for expenses of last
sickness and funeral, but for no other debts.
Held that, where a widow died, leaving certain
lots, appraised at $1,500, and an insolvent es-
tate, but no homestead, an unmarried daughter
and only heir, living with her at her death, on
choosing to take such lots in lieu of homestead,
was entitled to them free of the lien of a mort-
gage given by deceased, and of claims for ex-
penses of deceased's last sickness and funeral.

We therefore hold that, under the facts in this case, John Griffiths, Eaton & Prince Company, Baker & Smith Company, Wallace L. De Wolf, and W. G. Neiman, as assignee of W. H. Spellman, were entitled to have their liens foreclosed upon the lot upon which the building was situated and the entire building, and that the same should have been sold as a whole, and the proceeds applied to the discharge of their several claims, if sufficient, and, if not sufficient, that they then be paid pro rata; and if there should be any surplus of such proceeds after payment of all of the said liens, then such surplus to be paid to the Oriental Investment Company, but in case the proceeds of such sale should not discharge the claims of the said parties, then that execution should issue against the Oriental Hotel Company for the balance remaining unpaid. The district court erred in ordering the sale of the land, foundation, and basement separately from the balance of the building, and in ordering the proceeds of such sale to be applied to the payment of Griffiths' claim, to the exclusion of the other lienholders, and also in ordering the building, other than the land, foundation, and basement, to be sold separately, and the proceeds distributed among the several lienholders; and the court of civil appeals erred in affirm-judgment setting aside such lots to the aping the said judgment for that reason. therefore ordered that the judgments of the district court and of the court of civil appeals be reversed, and that judgment be here rendered in favor of the plaintiffs below and W. G. Neiman for the several amounts for which judgment was rendered by the dis

Appeal from district court, Travis county, James H. Robertson, Judge.

Application in the probate court by Wilhelmine J. Krueger, the surviving unmarried daughter of Josephine Stuessy, deceased, for an order setting apart to her certain lots left by deceased, as a substituted allowance in lieu of a homestead, to which Charles Wolf and other creditors, and M. C. Granberry, administrator of deceased's estate, filed separate oppositions. There was a

plicant, subject to the claim of Charles Wolf, which was secured by a trust deed on the lots, and the other creditors, the administrator, and the applicant, appealed to the district court. From a judgment declaring such lots subject to administration, and directing their sale to pay the claims of

such creditors and the costs of administra- | her husband she, having no other homestead, tion, the applicant appeals. Reversed.

We copy from appellant's brief the following, which is a full and accurate statement of the case and the proceedings had in the court below, and the result of trial: "This was a proceeding begun by an application filed in the probate court of Travis county, Texas, by the appellant, Wilhelmine J. Krueger, who was the unmarried daughter of Josephine Stuessy, deceased, remaining with the family of the deceased, at the first term of said court after the inventory, appraisement, and list of claims had been returned into court by M. C. Granberry, administrator of the estate of Josephine Stuessy, deceased, for an order of the court to be entered upon the minutes of the court, setting apart for her use and benefit, as an unmarried daughter remaining with the family of the deceased, as a substituted allowance in lieu of a homestead, lots 11 and 12, in block 29, division E, of the city of Austin, Travis county, Texas, which appellant chose to take at the appraised value. Letters of administration on the estate of Josephine Stuessy, deceased, were granted on October 7, 1893, to M. C. Granberry, by the probate court of Travis county, Texas, upon his application filed September 21, 1893, in said court; and said administrator qualified as such on November 21, 1893, and an inventory and appraisement of said estate was filed on November 2, 1893, and examined and approved by the court on January 11, 1894; the only property belonging to the estate, as shown by the inventory, being lots 11 and 12, block 29, division E, in the city of Austin, Travis county, Texas. On December 2, 1893, said On December 2, 1893, said administrator filed an application for the sale of said lots, and at the next-the January-term of the probate court, to wit, on January 5, 1894, action on said application for sale was continued to the next term of the court. On January 20, 1894, appellant filed her application for an allowance in lieu of a homestead. On January 26, 1893, Hon. William von Rosenberg, Jr., county judge of Travis county, Texas, having entered his disqualification as judge in said estate, and a certificate of such disqualification being forwarded to the governor of Texas, the governor appointed R. H. Ward, Esq., of the Austin bar, special judge in said estate, who thereupon qualified according to law on February 2, 1894. On February 2, 1894, the appellant was granted leave to file her first amended application for allowance in lieu of homestead, setting up that the intestate, Josephine Stuessy, was her mother; that she is now, and was at the date of her mother's death, and has constantly been from the 27th day of October, 1889, the widow of her deceased husband, August William Krueger, who departed this life on said last-named date; that she was the sole surviving heir and constituent of the family of Josephine Stuessy, deceased; that since the death of

remained with and constituted a part of the family of said Josephine Stuessy until her death, on March 21, 1893; that the deceased, at the time of her death, resided on lots 3 and 4, in block 30, division E, in the city of Austin, Texas, in which deceased had a life estate, which terminated at her death, after which time, until the present, she, the appellant, had remained on and occupied lots 11 and 12, block 29, division E, city of Austin, Texas, inventoried as the property of deceased, and of the appraised value of $1,500, which property was the only real estate of said decedent, and that there was no other property belonging to decedent's estate; that said lots 11 and 12, in block 29, division E, were exempt, under the constitution and law of this state, from execution or forced sale, and did not form any part of the estate of said deceased; that there was no other property belonging to said estate subject to administration; that said estate was insolvent; that there was no necessity for holding the same open, and that the estate should be closed by administrator filing his account for final settlement of said estate; that said lots 11 and 12, block 29, division E, were free from all debts for purchase money or for taxes due thereon, or for material used in constructing improvements thereon; that she had not acquired any homestead since the death of her husband, nor did she then own or possess any homestead, or other real estate, save the lots 11 and 12, block 29, division E, nor did she or her deceased husband own such property at the date of his death; that she chooses to take at the appraised value said lots 11 and 12, block 29, division E, in the city of Austin, as a substituted allowance in lieu of a homestead. Appellant prayed that lots 11 and 12, block 29, division E, in the city of Austin, as the property of the deceased, be set apart to her as a substituted allowance in lieu of a homestead; that the administrator be cited to make his final account as such at the next term of the probate court; and that if, upon final settlement, said estate proved to be insolvent, that the title of the applicant to said substituted allowance set apart to her under the provisions of title 37, c. 18, of the Revised Statutes of this state shall be absolute, and shall not be taken for any of the debts of the estate, and that she have judgment for all costs, etc.

"This application was contested by several creditors of the estate. The creditor M. A. Taylor filed his opposition on February 2, 1894, setting up that he was the owner and holder of two unpaid claims against the estate of Josephine Stuessy, deceased, viz. one claim duly proved, presented to, and allowed by the administrator on 28th November, 1893, for the sum of $344.50, and approved as a first-class claim by the court, and another claim for $650, with interest at S per cent., duly proved up, presented, al

lowed, and approved as a fourth-class claim. He denied that applicant Krueger was a constituent or member of decedent's family; that decedent was not a head of a family, but died a feme sole; that the property described in applicant's petition was not the homestead of decedent, or of applicant; that there was no merit in her application, she being a widow, and herself the head of a family, at the time of decedent's death. The creditor Charles Wolf also filed opposition on February 2, 1894, and set up the fact that he was the owner and holder of a just and unsatisfied debt and claim against the estate to the amount of $500, evidenced by promissory note executed by decedent after she became a widow, on February 1, 1890, for $300, payable to his order on or before two years after said date, with ten per cent. interest from date and ten per cent. attorney's fee; that said note was secured by a deed of trust on said lots 11 and 12, block 29, division E, city of Austin, Texas; that the same had been duly presented to and allowed for the full amount thereof by the administrator of the estate, and filed in said estate; that applicant, although a daughter of decedent, married about 25 years ago, and since marriage has never constituted a member of decedent's household or family, within the true interpretation of the application of the laws of Texas pertaining to homesteads, homestead exemptions, and allowances, and denied all and singular the allegations of said application; that decedent was the wife of Henry Stuessy from about 1857 until his death, about 1878; that during his lifetime he and his wife (decedent) possessed a homestead of their choice, situated in block 30, division E, city of Austin, Texas, and they resided thereon during his lifetime until his death, and after his death his surviving wife (decedent) continued to possess, occupy, and reside thereon as her homestead until her death; and that, if applicant is entitled to any homestead right or allowance, she is limited to the aforesaid homestead of decedent; that the property applied for by applicant for homestead allowance was the separate property of decedent. The creditor Monroe Miller, who had a claim against said estate for $49 for funeral expenses, and allowed by the administrator on January 26, 1894, also appeared, and contested said application, and adopted the objections of the creditor M. A. Taylor. The administrator also contested said application.

"The application and contests were heard on February 2, 1894, and judgment was rendered by the probate court allowing and setting apart to appellant, Wilhelmine J. Krueger, as her allowance in lieu of a homestead, said lots 11 and 12, in block 29, division E, city of Austin, Texas, she having chosen and elected the same of decedent's estate, decedent leaving no homestead, and said property allowed applicant in lieu thereof being de

cedent's separate estate, subject to the claim of the creditor Charles Wolf, appellee; and, unless applicant pays or causes to be paid said debt, said property should be sold in due course of administration for the payment of said debt. The court further ordered and decreed that said property allowed applicant in lieu of a homestead, is not subject to the payment of any other debts of said estate of any kind whatsoever, and adjudged that the other respondents, M. A. Taylor and Monroe Miller, take nothing by their contest, and pay all costs incurred by reason of their contesting the application of applicant. It further appearing to the court that said estate was insolvent at the date of grant of letters of administration, and no property belonged to said estate that is and was not exempt under the constitution and laws of the state of Texas, and not subject to the payment of any of the debts of said estate except that of the respondent Charles Wolf, ordered that the administrator file his final account in said estate at the next term of the court; to which judgment all parties other than the appellee Charles Wolf excepted, and gave notice of appeal to the district court of Travis county, Texas. The appeal of appellant, Wilhelmine J. Krueger, was perfected in due time by filing her oath pro forma pauperis in the probate court on February 17, 1894, and on the same day the creditor M. A. Taylor filed his appeal bond. On April 2, 1894, transcript of all proceedings had in the probate court with reference to the application of Wilhelmine J. Krueger to have homestead set apart was filed in the district court for the Fifty-Third judicial district of Travis county, Texas. On April 16, 1894, appellant, Krueger, filed a motion to dismiss the appeal of the creditor M. A. Taylor, which motion was, on June 26, 1894, continued by the district court without prejudice of either party to the next term of said court. At the next term of said court, on September 8, 1894, said motion was heard by the court, and said appeal bond of the creditor M. A. Taylor declared defective, and the court allowed said Taylor five days in which to file a new bond, to which ruling the appellant, Krueger, excepted, and reserved her first bill thereon. On September 12, 1894, the creditor Taylor filed a new appeal bond in the district court, which was approved by the judge of said court. On October 4, 1894, the appeal from the probate court came on for trial de novo in the district court, all parties, to wit, Wilhelmine J. Krueger, M. A. Taylor, Charles Wolf, Monroe Miller, and M. C. Granberry, administrator, being present either in person or by attorney, whereupon the appellant, Wilhelmine J. Krueger, filed her objections to the appearance therein of the creditor Monroe Miller and to M. C. Granberry, administrator, for the reason that no appeal bond was given by either of them in appealing from the order of the probate court, which objections were overruled by

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