Sumrall v. Russell , 255 S.W. 239 ( 1923 )

Upon Motion for Rehearing.

We simply hold that the Constitution provides for a lien independent of the statute on the estate of the person causing the improvement to be erected, in this case the leasehold estate of Brown, and not the fee owned by Russell, because under the facts in this case the latter had no contract with appellant by which a lien could be fixed. Strang v. Pray, 89 Tex. 525, 35 S. W. 1054; Ogburn Grav. Co. v. Watson Co. (Tex. Civ. App). 190 S. W. 205, writ of error granted, affirmed Watson Co. v. Ogden Gravel Co. 110 Tex. 161, 217 S. W. 373; Wilson v. Sherwin-Williams Paint Co., 110 Tex. 156, 217 S. W. 372; First National Bank v. Lyon-Gray Lumber Co. (Tex. Civ. App.) 194 S. W. 1146.

There is nothing in the proposition that the lease contract between Russell and Brown constituted the latter the agent of the former, and, by the jury’s holding that “no conversation took place -whereby appellee agreed with appellant that a lien would attach if he would proceed with the construction of the building,” appellant is precluded upon that theory.

The motion will be overruled.