
    Mrs. L. M. Huff v. W. B. Clark.
    1. Mechanic’s lien — Homestead.— Construing art. XVI, sec. 50, of the constitution in connection with arts. 3174 and 2341, R. S., it is clear that in order to fix a mechanic’s lien on a homestead the contract must be in writing.
    Appeal from Wilson. Tried below before the Hon. Everett Lewis.
    Suit against appellant to recover $134.80 for work and labor performed and to foreclose a mechanic’s lien upon certain premises set out in the petition. The contract, as alleged in appellee’s petition, was a parol contract. Appellee made out a claim of the indebtedness, certified and sworn to, which was attached to the petition.
    Appellant excepted to the sufficiency of the service of the claim; general denial, and special defense denying any contract, verbal or otherwise, express or implied, or to pay any moneys whatever to appellee for the work and labor performed; that she was a widow and head of a family; that the property was her homestead; that she never entered into any written agreement whereby a mechanic’s lien was intended or created, and that the district court had no jurisdiction of the case, and also a sworn plea to the jurisdiction of the court.
    The court overruled the appellant’s pleas to the jurisdiction, general and special exceptions. Verdict for appellee for $54 and a lien jupón the described property, with judgment for the money and a foreclosure of a lien upon the dwelling-house of appellant with fifty acres of land, described in the .decree. A motion was made for a new trial, which was overruled.
    The assignments of error are as follows: 1st. In overruling defendant’s demurrer and pleas to the jurisdiction. . . .
    The motion for a new trial was upon several grounds; among them the following: Error in overruling defendant’s demurrer and plea to the jurisdiction.
    
      Teel ds Haltom and Green & Walthall, for appellant,
    cited arts. ,3163, 3166, 4331 and 4317 of the Be vised Statutes.
    
      B. F. Ballard, for appellee.
   Delany, J. Com. App.—

notwithstanding the vagueness of the ■assignments of error, two of them, the first and fourth, ought to be ¡considered. The first is that the court erred in overruling the defendant’s demurrer and pleas to the' jurisdiction.

The demurrer was properly overruled. The petition sets forth a good cause of action and is sufficient upon general demurrer.

One of the pleas, which in the record is called a plea to the jurisdiction, states that the.amount claimed by the plaintiff is below the jurisdiction of the court, and is within the jurisdiction of a justice of the peace; and that the claim of a mechanic’s lien is fraudulently set up in order to give the court jurisdiction, when in truth the property improved was the homestead of the defendant; but it is not alleged in this plea that the defendant was the head of a family. The other plea, filed at the same time, does properly present this question of homestead, but it was not presented as a plea to the jurisdiction. The defendant asked a charge upon the same point, which was refused, and these rulings are presented in a bill of exceptions. The court seems to have thought that the defendant’s homestead was not exempt from the mechanic’s lien claimed by the plaintiff because she was not a married woman.

The constitution (art. XVI, sec. 50) provides that “the homestead of a family shall be and is hereby protected from forced sale for the payment of all debts except for the purchase money thereof, . . . the taxes due thereon, or for work and material used in constructing improvements thereon; and in this last case only when the work and material are contracted for in writing, with the consent of the wife given in the same manner as is required in making a sale and conveyance of the homestead.”

The act of August 7, 18Y6, which is copied into the Revised Statutes, provides (sec. 4) that when lumber or material is furnished, labor performed, erection or repairs made,upon a homestead, to fix a lien upon the same, it shall be the duty of persons, mechanics, artisans, lumber dealers or laborers, who shall perform any labor or furnish any material upon or about the construction of any improvement or repairs upon a homestead, to make and enter into a contract-in writing, setting forth the terms of said contract, which said contract in writing shall be signed by the husband and wife, and acknowledged by her as required in making a sale of the homestead.” R. S., art. 3174; Acts 1876, p. 91, sec. 4.

We construe these constitutional and statutory provisions to mean that in all cases where it is sought to fix a mechanic’s lien upon the homestead, the contract must be in Avriting. This will be put beyond dispute by reference to article 2341 of the Revised Statutes, which is as follows: The exemption of the homestead provided for in this chapter shall not apply when the debt is due. ... 3d. For work and material used in constructing improvements thereon; but in this last case, such work and material must have been contracted for in writing, and the consent of the wife, if there he one, must have been given in the same manner as is by law required in making a sale and conveyance of the homestead.”

This disposes of the entire case, for as the contract relied on was verbal, no lien could attach to the property, and the lien set up in the petition was the sole ground of the jurisdiction.

"We need not, therefore, consider the remaining questions. The judgment should be reversed and the cause remanded.

Reversed and remanded.

[Opinion approved May 1, 1883.]  