
    HOWELL et ux. v. McMURRY LUMBER CO.
    
    (Court of Civil Appeals of Texas.
    Nov. 5, 1910.
    Rehearing Denied Dec. 10, 1910.)
    1. REFORMATION OF INSTRUMENTS (§ 30)— Action on Contract — Relief.
    The action was to recover the balance due under a contract for the erection of a house and to foreclose a materialman’s lien on the lot, and the contract, by the inadvertence of the scrivener, recited that plaintiff lumber company, was “a corporation,” when it was a copartnership, and described the lot as situated in a different county from that in which it was situated, but the material furnished was used in erecting the dwelling specified in the contract on the lot specified therein. Held, that the contract would be corrected and enforced according to the parties’ intention in the same action.
    [Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 117, 118; Dec. Dig. § 30.]
    2. Constitutional Law (§ 33) — Self-Executing- Provisions — Right to Lien — Necessity of Contract.
    Const, art. 16, § 37, giving materialmen a lien upon buildings for the value of materials furnished therefor, and requiring the Legislature to provide for the enforcement of such liens, is self-executing and not subject to conditions not imposed by the Constitution itself, so that the fact that a contract for materials for erecting a building did not give the materi-alman a lien would not deprive him of a lien for the materials furnished.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 34; Dec. Dig. § 33.]
    3. Husband and Wife (§ 239) — Liability to Wife — Debts.
    Since, by the direct provisions of Rev. St. 1895, art. 2970, the wife may only contract debts for necessaries furnished herself or children, and for expenses incurred for the benefit of her separate property, a personal judgment was improperly rendered against the wife, in an action against husband and wife, to recover the balance due for materials for erecting a house on the homestead lot; there being no showing that the homestead selected was necessary as a home for the wife, and it only appearing that the husband contracted for the erection of the building upon their homestead with the wife’s consent.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 856; Dec. Dig. § 239.]
    Error from District Court, Dallam County; D. B. Ileill, Judge.
    Action by the MeMurry Lumber Company against W. G. Howell and wife. Judgment for plaintiff, and defendants bring error.
    Affirmed, as modified.
    Tatum & Tatum and J. S. Bailey, for plaintiffs in error. Stalcup & Miller and Ed C. Hyde, for defendant in error.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes
    
    
      
       writ of error denied by Supreme Court.
    
   CONNER, C. J.

This suit was instituted on the 12th day of September, 1908, by John MeMurry, J. A. McFarland, and T. C. Spencer, composing the firm of the Me-Murry Lumber Company, seeking to recover an unpaid balance of $815 with interest thereon, which plaintiffs in error had promised to pay for material for the erection of a house upon lot 10 in block 18 in Dalhart, Dallam county, and foreclose the material-man’s lien upon said lot. The lot designated at all times herein stated constituted the homestead of plaintiffs in error, but they suffered an adverse judgment, from which they have appealed.

It is undisputed that on the 6th day of April, 1908, plaintiffs in error W. G. Howell, joined by his wife, Armida Howell, and the MeMurry Lumber Company entered into a written contract in which it was agreed that the lumber company would at the prices therein stated furnish lumber and building materials necessary to erect a five-room dwelling house upon said lot 10, in block 18. This contract was signed by all parties and duly acknowledged by W. G. Howell and by Armida Howell in the form required by the statute for conveying the wife’s separate property, and duly recorded the day following its execution. The contract, however, described the lumber company as a “corporation,” instead of a copartnership as plaintiffs in error alleged, and the lot as “situated > in the city of Dalhart, Hartley county, Texas,” instead of in Dallam county, as the plaintiff alleged, and it is first insisted that defendants in error could not in this suit, as they sought to do in their petition, correct the contract so as to conform to the truth. There can be no reasonable controversy as to the fact that the misdescriptions noted in the contract were the acts of the scrivener who reduced it to writing, and that all parties proceeded under the mistakes. The contract was with the McMurry Lumber Company and the added terms, “a corporation,” were mere descriptive surplusage, in the light of the undisputed facts. So, too, it is undisputed that the lot in question is situated in Dallam county, though quite close to the Hartley county line, and the evidence leaves no doubt but that the material furnished was used in the erection of the dwelling specified in the contract on that particular lot, and that plaintiffs in error 'have continuously resided therein since. In such cases authorities might be multiplied for the practice of correcting and enforcing the contract in accordance with the intentions of the parties in the same suit. Harrell v. De Normandie, 26 Tex. 121; Insurance Co. v. Lewis, 48 Tex. 622; Nutall v. Nutall (Ky.) 82 S. W. 377; 34 Cyc., page 910.

The contract itself neither gave nor declared the lien sought to be enforced, and defendants’ further contention is that in the absence of such declaration no lien arises; but we do not concur in this view of the law. Section 37, art. 16, of the state Constitution, reads: “Mechanics, artisans, and material men of every class, shall have a lien upon the buildings and articles made or repaired by them for the value of the repair done thereon or material furnished therefor; and the Legislature shall provide by law for the speedy and efficient enforcement of said liens.” In construing this article of the Constitution, and a contract for labor and materials which made no reference to a lien, our Supreme Court, in the case of Strang v. Pray, 89 Tex. 525, 35 S. W. 1055, held, in effect, not only that section 37 of article 16 of the Constitution gave to one furnishing materials for the erection of a house a lien upon the house and the land upon which It was situated, but also that it was self-executing and in no wise dependent upon statute, nor subject to conditions not imposed by the Constitution itself. See, also, F. & M. Nat. Bank v. Taylor, 91 Tex. 78, 40 S. W. 876, 966. Other than as above noted, no question is made as to the form or sufficiency of the contract or of the proceedings thereunder, and the consent of the wife having been given in the manner required by section 50, art. 16, of the Constitution, authorizing the forced sale of the homestead, we think the court below properly adjudged the lien as prayed for.

The court below gave personal judgment against the wife, Armida Howell, and of this complaint is made that we think well founded. Under the laws of this state, the wife, generally speaking, cannot contract debts of any character save for necessaries furnished herself or children, or for expenses incurred for the benefit of her separate property. See Rev. St. 1895, art. 2970; Speer's Law of Married Women, § 46; Noel v. Clark, 25 Tex. Civ. App. 136, 60 S. W. 356; Lynch v. Elkes, 21 Tex. 229. We agree with the Court of Civil Appeals for the Fourth district in Bexar Bldg. & Loan Ass’n v. Heady, 21 Tex. Civ. App. 154, 50 S. W. 1079, that conditions might exist which would require a court to hold the acquisition of a dwelling to have been necessary for the wife and children; but here, as there, the facts do not present such a case. Nothing here appears beyond the mere fact that the husband, with the wife’s consent, given in manner prescribed by the Constitution, contracted for the erection of a building upon their homestead, but whether without this the wife would have been without a sheltering roof the record does not disclose. The selection of the homestead ordinarily devolves upon the husband, and the record here presents no reason for a holding that the particular place upon which defendants in error were adjudged a lien was necessary as a 'home for the wife.

We therefore conclude that the court erred in rendering personal judgment against the wife, and in this respect the judgment below will be reformed, but in all other respects it is affirmed.  