
    VANE, CALVERT & CO. v. ALBERT McKINNEY et al.
    SUPREME COURT,
    AUSTIN TERM, 1882.
    
      Mechanic’s lien — Art. 7113 P. D. construed — Paint.—Persons furnishing-paints used in the construction of a building were entitled to a mechanic’s lien under article 7112 Paschal’s Digest, upon complying with its requirements.
    
      Same — Purchasers of propwty subject to lien. — Under said article, a lien might be enforced against- parties purchasing the property within tlie six months given within which to perfect such lien, although purchasing prior to the recording of the-lien.
    Appeal from Collin county
    Knox Lee for appellants.
   Delaney, J.

Opinion by This suit was filed June 30, 1875, by-appellants against Thomas P. Atkinson and Peter W. Walton, jr., late partners, under the firm name and style of T. P. Atkinson & Co., alleging that on the thirty-first day of October, 1874, plaintiffs sold to said firm a quantity of paints to be used upon their hotel in the town of Plano, in Collin county, known as the Durand Hotel,, and that the paints so ' furnished were so used by said firm. That the value of the paints so furnished was $74.75, and that defendants agreed to pay for said paints the said sum, with interest at eight per cent per annum, ninety days after delivery, but had failed and refused to do so. That plaintiffs had fixed and secured their lien upon said hotel and the lots upon which it is erected, by mak-y ing a duplicate copy of the bill of particulars under oath, and de-h livering one to the Clerk of the District Court of Collin county,, which was duly filed and recorded on the twenty-fifth day of June,. 1875, and that .on the same day the other copy was duly served, upon P. W. Walton, jr., one of the members of said firm, bythesheriff of Collin county. That on the thirty-first day of March,. 18Í5, defendant Atkinson conveyed his__mterest in the hotel and; lots to Albert and Charles McKinney, and on the twenty-seventh} day of March, 1875, defendant Walton conveyed his interest in the same property to one J. A. P. Travis,_all, of whom are made defendants. a a "

Prayer for judgment for the amount of the claim, and for the ■enforcement of the lien, and-for general relief, etc.

Annexed, as an exhibit, was an account duly sworn to under the ^statute, and also a certificate of its registration, together with the .sheriff’s return of service of the duplicate upon defendant Walton.

July 21, 1875, defendant Travis answered by demurrer, setting up that the allegations in the petition were not sufficient to sustain 4he lien, and a general denial. July 27, 1875, a similar answer was •filed by defendants Charles and Albert McKinney.

Defendants Atkinson and Walton made default. On the sixth ■of January, 1876, the court sustained the demurrer of defendants •Charles and Albert McKinney to the petition of plaintiffs, and adjudged that they go hence without day and recover their costs of plaintiffs. But judgment by default against the defendants Atkinson, Walton and Travis for the debt, interest and costs, but without -foreclosure as to Travis. To the ruling of the court sustaining the -demurrer plaintiffs excepted, and gave notice of appeal. Appeal "bond filed July 11, 1876.

It is probable that the judgment by default was rendered against the defendant Travis by mistake.

The record sustains his answer, comprising a demurrer to the petition and a general denial in almost the same terms as the answer -of his co-defendants,_the McKinneys.__ ' ’

The judgment is rendered against him for the debt and interest, ■though he^yvas not a pa£^jpjth^_purchas_e_pfjhgi paints, and was made a party to the suit only in order to obtain a foreclosure of the •lien set up in the petition upon the building and lots.

Appellees have not furnished us with either brief or argument; but it appears from the brief of appellants that the court below sustained the demurrer upon two grounds:

1. That appellants do not come within the description of persons to whom the lien is given by the act of November 17, 1871, “To regulate mechanics’, contractors’, builders’ and other liens.” -{P. D., art. 7112.)

2. That, although the claim was rendered so as to fix the lien within six rnonths_from the maturity .of the debt, still, as the Me-" Kinneys and Travis purchased before the lien waslixed,. they are innocent purchasers, and as to them the lien cannot take effect.

' Both these questions seem to be decided adversely to this view in the cases of Gaylord v. Loughridge and Huck v. Gaylord, 50 Texas, 573 and 578.

Our opinion is that the judgment should be reversed and the cause remanded. — — “

Report of Commissioners of Appeals examined, their opinion, adopted, the judgment reversed and cause remanded.

Gould, C.  