#### F. M. MUNDINE V. MARKS BERWIN.

IN SUPREME COURT,

TYLER TERM, 1884.

*21 échame $ Lien*— A 'written contract, made after thejwork is ylone and labor -per, formed, if such is the clearly expressed inteiition of the.TOxtiesT and, the contract is recorded as the statute provides, will operate to fix and secure the mechanic’s lien.

*Same*— Ltcgisiration.—Such contract may he recorded before the debt evidenced by it becomes due. ““" "

Appeal from Milam county.

This cause comes before us without, a statement of facts, and with*468out, bill of exceptions, and in such case, if the petition states a cause of action on which the judgment might legally have been rendered, on proof of the facts alleged, then the judgment must be affirmed.

The instrument sued on is made a part of the petition, together with its certificate of authentication for record and certificate of record. The written assignment Of whatever right that instrument conferred on Lyon is also made an exhibit to the petition. The instrument is as follows *i*

STATE OF TEXAS, /

coins iy oí milam. f Know all men by these presents, that 1 F. M. Mundine, of Lee county, Texas, for and in consideration ol work done and labor performed for mo byjjJ. L. Lyon, a mechanic, upon and in the construction of a certain three story brick building, situated on the south end of lot 1, 2 and 3, in block 3, in the city of Rockdale, in Milam county, Texas, at, ihe junction of Main and Mi-lam streets, and fronting 5!) feet on Main street, and 81 feet on Milam street, have this day granted and given, and by these presents do grant and give unto tbe said J. L. Lyon; a mechanic’s lien, in, and upon the house aforesaid, and the said parts of lots in said block, “in order to secure him in the payment” of the sum of three hundred and seventy-two dollars and fifty-seven cents. The amount due by me to the said J. L. Lyon at this date, for the said work done and labor performed on said building in its construction, and I further agree to pay him the sum of three hundred and seventy-two dollars'and fifty-seven cents, on the first day of November, A. D., 1881, with 12 per cent per annum interest from this date, and I hereby give this lien as a mechanic’s lien under chapter 27, title 61, of the Revised Statutes of the State of Texas.

In witness, whereof, I hereunto set my hand, this 21st day of November, A. 1)., 1880.

F. M. MUNDINE.

This contract was’duly acknowledged on the same day of its execution, and was duly recorded in the county clerk’s office of Milam county, Texas, on the 2nd day of December, A. D,, 1880. And this contract was duly transferred by Lyon to the plaintiff in writing rendered thereon, for a valuable consideration, if the averments of the petition are true. If the labor performed by Lyon was such, and was done under such circumstances, as woulc? have enabled him *469establish a mechanic's lien on the property by complying with the statute, we do not sec that the written contract, made after the work was done and the labor performed, would not, when such is clearly expressed to be the intention of the parties, as fully give even *fh§.*mechaniojsjien as would the written contract if made prior to the ~"tTme the"work was done, if the written contract was recorded as provided by statute. ' ‘ —

> If, however, this was not so, the instrument made a part of the 'petition would create a.i'i express lien by contract which the courts would enfpree^ and in so far as the contract refers to the statute which is intended to provide a means by which mechanics may establish liens, it cannot be held to have been intended by the parties to require more than that the instrument evidencing the contract, should be recorded within the time and in the manner required by the statute.

It is, however, contended that a contract evidencing the facts, which, upon compliance with the law, fixes the lien, cannot be recorded *before*the debt becomes due, but must be recorded *after*the debt becomes due in order to fix and secure the lien. Such a constimctionjiim]^ the words of the statute, and wBuTd be at war with its spirit and intent. ~~

The statute provides s “In order to fix and secure the lien herein provided for, the person or firm, contractor, mechanic, laborer, artisan or lumber dealer furnishing material shall have the right at any time, within six Months after such debt becomes due, to file Ms contract in the office of the county clerk of the county in which such property is situated, and cause the same to bo recorded in a book to be kept by the county clerk foythat purpose. Rev. St., 3165.

This statute simply places a limitation _of time within which the contract must Be filed in order to fix the lien, and ceHEmljl w0s”jnc)£ ”iíÍtb’íidccI"ío operáto^askleclarative that the recording of the contract before the debt was due, should notjbe as effective in fixing the lien, as though it was recorded after tlie "debt became due. The object and purpose of the law would encourage the recording oT the contract at the very eariiest ’practiC3.bIe jnoroeiit, Jjhatyall ^persons may "know of the existense of the lien.

The judgment is affirmed.

Stay ton, X