
    R. B. SPENCER & CO. v. BROWN et al.
    (No. 714.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 8, 1917.
    Rehearing Denied Dec. 6, 1917.)
    1. Mechanics’ Liens @=13 — School Building — Severance from Realty.
    Under Rev. St. 1911, art. 2845, -which precludes the fixing of a lien upon school property, although a rock schoolhouse constituted a permanent fixture upon the land, and was a part thereof, where the manifest intention of school trustees, under written contract for completion -of addition to a school building, was to vest title in the contractor, it would constitute a severance, and for materials 'furnished the contractor for reconstructing the rock schoolhouse plaintiff had the right to a lien, although the contractor had sold his interest in the building prior to the time the materials were furnished, where the sale did not become effective until later.
    2. Schools and School Districts @=65 — Sale of Property— Statute.
    Rev. St. 1911, art. 2846, requiring order of commissioners’ court for sale of school property, relates to common school districts, and is inapplicable to independent school districts.
    3. Schools and School Districts @=74— Sale of Property — Consent of State Board of Education — Ratification.
    In August a school district agreed in writing to give a contractor a certain amount of cash, a stone building, etc., for completing an addition to a school building. The work was completed, but no consent of the State Board of Education was procured for a sale of the stone school building, as required by Rev. St. 1911, art. 2873, until about two months later. Held, that the resolution of consent of the Board of Education, authorizing sale, operated retroactively and made the contract with the contractor effective as of date of contract.
    4. Schools and School Districts @=74 — Sale of Property — Authority by State Board — Construction.
    Under resolution of State Board of Education giving school trustees power to sell part or all of a 10-acre tract upon which was located an old schoolhouse, trustees could sell schoolhouse alone.
    5. Schools and School Districts @=65 — Sale of School Property — Deed—Sufficiency.
    Rev. St. 1911, art. 2873, requiring deed from school board to recite resolutions of trustees and State Board of Education as to sale, is directory, and a failure to incorporate such resolutions does not nullify conveyance.
    Appeal from District Court, Erath County; W. J. Oxford, Judge.
    Action by R. B. Spencer & Co. against J. G. Brown and another. Judgment against defendant named for the amount of the account sued for, but denying foreclosure of lien, and plaintiffs appeal.
    Reversed and rendered.
    Hickman & Bateman, of iStephenville, and Lattimore, Bouldin & Lattimore, of Et. Worth, for appellants. Chandler & Pannill, of Stephenville, for appellees.
   HIGGINS, J.

On August 8, 1914, the board of trustees of the Lingleville independent school district entered into a written contract with J. G. Brown by the terms of which Brown agreed to erect and complete an, addition to the public school building as per plans and specifications, the board agreeing to pay Brown the sum of $717 in cash and two old school buildings, being a rock building located at Lingleville, and the building known as the Antioch Building, together with three acres of land upon which the Antioch Building is located. Brown was to have the privilege of using, in the construction of the addition, all materials; that were sound and in. good condition in the old buildings. The contract is not skillfully drawn, but the legal effect thereof is as indicated. This contract was performed by Brown. The board of trustees of the Bosque Presbyterian .Church, being advised that Brown had acquired the right to the rock building mentioned above, made an oral agreement with the board of trustees of the Lingleville school district, whereby the latter agreed to convey to the church two and one-half acres of land upon which the rock building was situate, and the board of trustees of the church also made an agreement with Brown whereby Brown agreed to fit up and complete the old rock building as a church for the use of the church. The board of trustees of the church agreed to pay Brown $650 in money and convey to him a lot in Lingleville. This contract between Brown and the trustees of the church was in writing, but was lost and was not offered in evidence. The contents thereof were testified to by the trustees and its substance is as indicated. The two contracts made by the trustees of the Ptesbyterian Church were made in the month of August, and in dealing with Brown they evidently regarded and treated with him as the owner of the rock building. They made the agreement with Brown upon the condition that the trustees of the school district would sell to them the land upon which the building was situated. At the time the church trustees contracted with Brown, the rock building was in a dismantled condition, the roof and all building material in the second story thereof having been removed. The walls were then about 10 feet high, and with these walls the building was reconstructed by Brown as a church, and delivered to the Presbyterian Church and the trustees thereof. In the construction of the church building, Brown purchased his material from the appellants and failed to pay for same. Appellants filed their account for record, and gave the notice required by law, in order to fix a materialman’s lien upon the church building and the ground upon which it was situate, such account being filed and notice given within the time and in the manner required by law. The trustees of the church conveyed to Brown the lot which it had contracted to convey to him, and also paid in cash or by note the other consideration agreed upon by them for the construction of the church building. The material was furnished to Brown by appellants during the month of September. By deed dated October 31st, the board of trustees of the Lingleville independent school district conveyed to the trustees of the church, for a consideration of $125 cash, the 2%-aere tract of land upon which the above-mentioned rock building was situate. At the time the board of trustees of the Lingleville independent school district made the above-mentioned contracts with Brown and with the trustees of the church, no order had been made by the commissioners’ court of that county prescribing the terms of sale of the rock building or of the land, nor had the consent of the State Board of Education been obtained to the sale of the house or the land. Some time in October, apparently about the 19th day thereof, or,, in any event, prior to the date of the above-mentioned deed, the State Board of Education made an order which reads as follows:

“Resolved by the State Board of Education of Texas that permission is hereby granted to the board of school trustees of Lingleville independent school district to sell to the highest ,bidder,for the purpose of investing the proceeds in more convenient and desirable school property, the following described property:
“All or any part of a ten-acre tract of land, known as the old school ground, for the purpose of investing the proceeds in more desirable school property.”

The above-mentioned 2%-acre tract of land upon which the old rock building was situate seems to be treated by the parties as being embraced within the 10-acre tract of land referred to in the foregoing resolution of the State Board of Education. The board of trustees of the church, in their dealing with Brown and with the board of trustees of the independent school district, seem to have treated and regarded Brown as the owner of the rock building, and the board of trustees of the independent school district as the owner of the land. In any event, the church trustees, in dealing with the school trustees, knew of Brown’s right or claim to the rock building. In contracting with Brown, the church trustees did so upon condition that they could secure title from the school board to the 2½ acres of land, and having obtained an oral agreement from the school trustees to so convey the land, the contract with Brown for the repair and completion of the rock building was made and performed by Brown and the church trustees. This suit was filed by appellants to recover of Brown the purchase price of the material furnished and for foreclosure of a materialman’s lien upon the building and ground against Brown and the church. Judgment was rendered in their favor against Brown for the amount of the account and foreclosure of the lien claim denied, and from this judgment this appeal is prosecuted. The date of the completion of the repairs upon the rock building by Brown is not definitely shown, but it was some time in the month of -September, about the 28th day thereof, when it was completed and turned over to the church.

Opinion.

Upon the facts stated, we hold that Brown became the owner of the old rock house and the repairs thereto were made by him as such owner. Appellants having furnished the material to him used in repairing the house, they acquired a lien thereon under the Constitution and statutory laws of our state. It thus follows that appellants were entitled to a foreclosure of their lien upon the building and an order directing its sale. The purchaser at such sale will have the right to remove said building within a reasonable time from the date of the purchase under the provisions of article 5629, R. S.

Appellees contend that the building was a permanent fixture upon the land and a part of the realty, and that title thereto remained in the board of trustees of the Lingle-ville independent school district until October 31st, upon which date title passed to the church by the conveyance above mentioned. It is asserted that since the title to the land and building was vested in the board of trustees of the Lingleville independent school district at the time the material was furnished for its repair, that, therefore, no lien could attach to the building under the provisions of article 2845, R. S., which precludes the fixing of a lien for material upon school property, and that when the church acquired the deed from the board of trustees they therefore acquired the same free from any lien.

It is true the rock building constituted a permanent fixture upon the land and was a part of the realty: But by contract of sale the owner may sever such a fixture from the realty without a physical detachment, making a constructive severance. 11 R. C. L. 1066; 19 Cyc. 1010; Johnston v. Mtg. Co., 129 Ala. 515, 30 South. 15, 87 Am. St. Rep. 75.

The manifest intent of the contract between the trustees of the school district and Brown was to vest title to the rock building in Brown, and this would constitute a constructive severance. Since this contract was in writing, it was not within the scope of the statute of frauds. But appellees further contend that Brown did not become the owner ¡of the building under his contract with the school board, because no order had been made by the commissioners’ court of the county prescribing the terms of the sale, as required by article 2846, R. S., nor had the consent of the State Board of Education to such sale been obtained, as required by article 2873, R. S.

Article 2846 has no application, because the school district was an independent school district. Said article appears in the Revised Statutes in chapter 15, title 48. This chapter relates to common school districts. Originally this article was section 86 of chapter 124, Acts of the Twenty-Ninth Legislature, p. 263. It there appears under the subtitle “School Houses and School Supplies” of the title “Common School Districts.” It is thus manifest that this article relates to the sale of property belonging to common school districts.

The sale of school property belonging to the Lingleville independent school dis- • trict is, however, governed by the provisions pf article 2873, R. S., which requires the consent of the State Board of Education. The State Board of Education did adopt a resolution, which was quoted above. This resolution did not in any wise undertake to prescribe the details of the sale which might be made of the land by the school board, and was sufficiently comprehensive! to authorize the school board to make the sale thereof in the form of applying the value thereof to the construction of a new building. That is what was done by the¡ agreement between the school trustees and Brown. This resolution of the State Board of Education constituted sufficient authority to the hoard of trustees to pass title to the school building to Brown, but in this connection it will be noted that this resolution was adopted subsequent to the date of the contract between the school board and Brown. Since said consent of the state board did not exist at the time of the contract with Brown, appellees contend he did not obtain the title to the building, and, was therefore not the owner thereof, so as to enable him to fix a lien thereon for materials furnished. We do not think that a deed to a house or land executed by the board of trustees) of an independent school district without the previously obtained consent of the State Board of Education would be such an absolute nullity as would preclude the application of the principles of ratification. Undoubtedly, however, it would be lacking in an essential necessary to its complete validity, viz. the consent of the State Board to the sale, but if such consent be subsequently obtained, then we are of opinion and hold that it would operate as a ratification of an act done without authority. In the instant case, the consent of the State Board of Education given in October, authorizing the board of trustees of the Lingle-ville school district to sell all or any part of the land, was sufficient to validate the contract of sale theretofore made between the board of trustees and Brown; it operated retroactively, and made the contract with Brown as effective as though it had been authorized previous to its making. It may be conceded that, at the time the material was furnished to Brown by appellants, Brown’s title to the house was lacking in complete validity because of the failure to obtain the previous consent of the State Board of Education, but he at least had an inchoate right or title to the property, which was after-wards perfected, and he should be considered the owner of the building at the time the material was furnished, within the constitutional and statutory provisions relating to materialman’s liens. Cameron & Co. v. Trueheart, 165 S. W. 58; Schultze v. Brewing Co., 2 Tex. Civ. App. 236, 21 S. W. 163. In Cameron & Co. v. Trueheart, supra, it was held that the purchaser of land under a verbal executory contract, which was subsequently carried out by the giving of a deed, was'the owner at the time the material was furnished. The purchaser in that case had a title which was lacking in a particular essential to its complete validity, viz. a written conveyance. Here Brown had a title to the rock house, which was in writing, but which also was lacking in a particular essential to its validity, viz. the consent of the State Board of Education. In Cameron v. Trueheart the imperfect title was perfected by the execution of a written conveyance given subsequent to the furnishing of the material, and the grantee was held to have been the owner at the time the material was furnished, within the meaning of the statute. 1-Iere Brown’s title was perfected by the resolution of the State Board passed subsequent to the furnishing of the material, and he, too, should be re-. garded as the owner of the building at the time the material was furnished, within the meaning of the statute, and it is so held.

It will be noted that the resolution of the State Board of Education gives the board of trustees the authority to sell all or any part of the 10-acre tract of land. The house was a permanent fixture, and constituted a part of the land, and was therefore within the purview of the resolution.

Article 2873, R. S., says the president of the school board “shall execute his deed to the purchaser for the same, reciting the resolution of the State Board of Education giving consent thereto, and the resolution of the board of trustees authorizing such sale.” In this connection, the point is made that the agreement between the board of trustees and Brown recited no such resolutions. It is not believed it was the intention that such provision should nullify completely a deed executed without reciting the resolutions mentioned. It was intended, doubtless, that the deed upon, its face should disclose the authority by which it was executed; but this provision is regarded as directory and not mandatory, and a failure to incorporate such resolutions in a conveyance, does not nullify the same. Upon the facts stated, it is held that Brown became the owner of the house in question, and, since the appellants furnished to him material for its repair, they are entitled to a lien thereon. The judgment of the court below will be reversed, and the judgment here rendered which should have been entered by that court, viz.: Against Brown for the amount of the account, in the sum of $159.92, with interest from October 1, 1914; and against all defendants establishing and foreclosing the materialman’s lien in favor of appellants against the rock house situate upon the 2½ acres of land conveyed to the board of trustees of the Bosque Presbyterian Church, U. S. A., by the trustees of the Lingleville independent school district, which ■deed is dated November 2, 1914, and recorded in the deed records of Erath county, Tex., in volume 126, at p. 369, and said house is ordered sold in satisfaction of the judgment rendered.

Reversed and rendered.

WALTHALL, J., not sitting, absent on Committee of Judges assisting the Supreme Court. 
      @=For otter oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes
     