The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1895-04-04
soNE OPINIONS HANDED DOWN
YESTERDAY THAT WILL IN
TEREST LAWYERS.
THEY ARE GOOD READING FOR
THE COMMON HERD.
A Land Case in Which the State Land
Board Figures-A Bexar County
Injunction Case Also Disposed
Of Yesterday.

lowing opinions Monday:
Collyns VS.. Cain; application for VIII
of error in an action of trespass to Try
title, from Tom Green county, Third dis
trict.
This application must be refused, anc
in doing so we have thought it proper tC
call attention to one matter connected
with it. Plaintiff claims under pur
chase of seven sections of land from the
State land board, THE sale being made
at Austin. These sales have been held
TO have been void, but it is commended
that this purchase was validated by the
act of 1891, chapter 81, laws of the
Twenty-second legislature, page 100.
The first section of this act provides
chat the failure of the land board to
comply with the requirements of the act
of April II, 1883, in placing the free
school. University and asylum lands OF
the State upon the market or in selling
the same, shall not have the effect to rem
der invalid the right, title or claim OF
any purchaser of such lands under any,
contract made with said land board, and
etc.
referring to the original bill as en-
rolled signed by the president Of the
senate and speaker of the house, and APP
proved by the governor and on file in the
office of the secretary OF State, we hnu
that the word "and," which we have
italicised in the quotation above copied,
does not appear therein. In case of con-
flict between the printed copy and the
original bill the latter will control. Omit
ting the word and" as indicated, the
language of the section quoted above IS
clearly limited by that which follows, to
cases in which the purchase was for not
more than three sections upon which set
Element was actually made, etc.
The word and" if regarded in the con-
struction of the act, would give the effect
to the law of validating all sales by the
land board, and the remainder of the SEN
tence would be without effect or meaning.
If the word was in the original act we
think therefore that it should be disre-
garded so as to give effect to oil of the
language of the act.
The writ of error is therefore refused.
Opinion by Brown, j.
Myers vs.. Maverick; action for debt
and to foreclose mechanics lien, from
Bexar county, Fourth district.
L
debt, but refused to allow the lien. The
court of civil appeals reversed and rem
dered the judgment in favor of plaintiff,
Myers, for both the debt and lien.
The decision of the case turns upon the
sufficiency of the description of the prop
erty as it appears in the recorded con-
tract.
/. Mechanics liens are created by the
constitution. Constitution, article 16,
section 37) The lien exists by reason
of the constitutional provision cited, and
! is independent of any statutory provision.
| 1t arises out of the transaction and cannot
be created by contract. For instance,
an express lien given to secure building
contract, even if called a mechanics
lien," would not be a mechanics lien as
created by the constitution, and, in case
of contest with others, might be found to
! fail in securing some valuable right that
would attach under the law to n me-
chanic's lien. (Warner Elevator COM
Ipany VS.. Maverick, decided at present
term)
| The same rule of strictness in comply
ing with the law is not necessary here as
in those states where the right depends
| upon the statute for existence.
| g In this case the description gave
the name of the building to be erected,
stated the locality to be on Avenue 70,
| Just north of the postoffice building in
San Antonio and it only remained for the
dimensions of the lot to be ascertained,
which could be done by extraneous ev-
| idence.
We think that the description was suf-
ficient. article 3170, Revised Statutes;
II Texas, 4S2; 6 Wharton 1877, &c Illinois,
500; . California, CO.,
| The judgment of the court Of civil ap-
peals is therefore affirmed. Opinion by
Brown, j.
Menger VS.. Ward; injunction sued out
by Menger to restrain the sale of certain
property, from Bexar county, Fourth dis
trict.
In 1892 Menger leased to one Schuehle
certain lots in Bexar county. The lease
was for one year with privilege Of renewal
for five years, also with the prililege to
purchase the leased premises upon certain
stipulated terms.l 1t contained also O
stipulation that the lease could suble'
all or part Of the premises If he 80 de
sired.
Schuehle went into possession under
this contract and constructed upon the
property an ice plant. Subsequently he
mortgagcd the plant and lease of the prop
erty to its limitation, with all privileges
appertaining to said lease to the defend
ant in error, Ward. In 1893 Schuhlt
and Ward authorized j. II. McLeary
to sell the property under the terms of thu
mortgage. The property was advertised
! by McIIeary. Subsequently Schulz,
voluntarily surrendered the lease ant
premises to Menger, giving him q qul
claim deed thereto.
Menger sued out an injunction in TIT
district court of Bexar county to proven
the sale under the mortgage to Ward
The district court, on the trial, perpetual
ed the injunction in part and dissolved
1t in part. The court Of civil appeal
reversed and reformed this injunction
lperpetuating the injunction as to all tn
improvements, but dissolving it as to tn
sale of the lease of the land and tn
privilege of removal, as well as the priv
lege Of purchase.
| Menger had no right to complain o
the judgment against Schuehle for at
torney's fees. Schuehle does not M
peal and the assignment raising this is
sue is not well taken. Did the authorit
TO sublet authorize the making of tn
mortgage to Ward?
Schuehle bad the right, under tn
terms of the lease, to make the mortgag
to Ward upon the leasehold estate, an
the purchaser of the estate at the NOR
gage sale would take it with the priv
! lege of extending the lease for the teri
of FIVE years under the same limitation
and obligations as those under whic
Schuehle held it. 1t was a covenan
that run With tho land lTavlor n