The bank appeals from the judgment of the court in decreeing that the $4530 of claims for material furnished under contracts made after the date of its mortgage should have priority of payment over its debt, and Taylor and Bennett prosecute writ of error from the judgment, because it decrees that the bank's claim, and those of other material men to the amount of $4530 shall have priority over their debt, which they claim should be classed with the other material men's liens and claims, and paid in the same order, and before the bank's claim. Some of the material men lienholders also resist the claim of Taylor and Bennett to be placed upon an equal footing with them, insisting that the failure on their part to file and record their claims as required by statute, and the taking of the notes and mortgage, amounted in law to a waiver of their mechanic's lien, which is also urged most persistently by the bank on this appeal. We are of opinion that the court correctly held that the several material men's claims have priority over the bank's debt and mortgage. Hotel Co. v. Griffiths, 88 Tex. 584
[88 Tex. 584], 33 S.W. Rep., 652. But we think the court erred in refusing to classify Taylor's and Bennett's claims with the other material men's liens, and in postponing their claims to that of the bank. Our Constitution, in section 37 of article 16, provides: "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 their labor done thereon, or material furnished therefor; and the Legislature shall provide by law for the speedy and efficient enforcement of said liens." It will be observed that this provision does not, in terms, extend the lien given to the land upon which the building is erected, but our Supreme Court has recently held, in a very carefully considered opinion delivered by Justice Brown, that this lien, as given by the Constitution on the building, extends also to the lots and lands necessarily connected therewith. The court say: "We conclude that a proper construction of the language of the Constitution of this State, as hereinbefore quoted, gives to mechanics, artisans, and material men a lien upon the interests or estate that the person causing such building or improvements to be made thereon has in the land upon which they are situated, for the value of the labor performed or material furnished in the erection and construction of such buildings, to the extent that the lands are necessary to its enjoyment, or that may be designated and set apart as intended to be used and enjoyed in connection with such building or improvements. The lien does not depend upon the statute, and the Legislature has no power to affix to that lien conditions of forfeiture. It may, under the Constitution, provide means of enforcing the lien, and in doing so may prescribe such things to be done as may be deemed necessary for the
protection of the owner or purchaser of such property — a limitation upon the time for the enforcement of such lien, and such other things as pertain to the remedy." Strang v. Pray (Tex. Sup.), 35 S.W. Rep., 1056. Our Supreme Court had under consideration, when this language was used, a case where the owner was attempting to defeat the lien of a contractor on the lot upon which the building was erected, upon the ground that the statute of Texas (Rev. Stats. 1895, art. 3295), and not the Constitution, gave the lien on the lot, and that the statute required the contract for the erection of the building to be recorded, which in that case was not done. We think that the language of the learned judge who delivered the opinion in that case, in the last paragraph thereof, means that the filing and recording of the contract or account, as provided in the statute, is not necessary in any case arising between the original contractor and the owner; that it is only necessary to fix, secure and protect the lien as against subsequent purchasers and mortgagees and lien holders who become so in good faith, for a valuable consideration, without notice of such claim and lien, and that this is all that the Legislature meant by that statute. It could not prescribe conditions of forfeiture, nor conditions upon which the lien should arise or take effect. The Constitution covered that part of the subject fully by declaring that the contractor who furnished the material or did the work should have the lien. No record within four months, or any other time, is required to give the lien. The Legislature is commanded simply to provide by statute for the "speedy and efficient enforcement" of such lien. The provisions of the statute requiring the claim to be recorded were intended to protect mechanics, artisans, and material men as against subsequent purchasers, mortgagees, and lien holders in good faith without notice, by furnishing constructive notice to the world of the existence of the lien, in designating where such matters can be found recorded, and thus making it the duty of persons dealing with the property to examine such records before advancing money on the property. Our statutes provide for the registration of deeds, and, when a purchaser of lands complies therewith, his title is "fixed and secured" against the world. Yet he may refuse or fail to record his deed, and be just as secure in his title as against all persons who have notice of his title or claim. A vendor of land who conveys the same by a deed which expresses in its face the amount of purchase price remaining unpaid, "fixes and secures" his lien on the land conveyed by reason of such recital; but he may fail to insert such a recital, and yet his lien will exist in full force against all who deal with the property having notice that the purchase money is in fact unpaid. In this case the bank does not plead that it advanced the $9500, or any part thereof, or bought the note and mortgage, without notice of Taylor's and Bennett's claims and liens; and this is an equitable defense that must be pleaded and proved before the bank can avail itself thereof in actions of this character. It is evident from the record that no such defense could have been successfully asserted on the part of the bank, which is reason
enough why it was not pleaded in this case. But it is contended here that Taylor and Bennett, by taking notes and a mortgage on the property in question, waived their mechanic's lien, and we understand from the record that the court below based its conclusion to that effect upon the bare fact of the taking of the note and mortgage. Some authorities are cited by the bank supporting this contention, but we do not think that they are based upon sound policy or good reason, or upon the weight of authority. The court finds that there was no express agreement to waive their mechanic's lien, and we understand this to mean — and whether it does or not we find from the record — that in taking the notes and mortgage there was also no intention on the part of Taylor and Bennett, or either of them, to waive their mechanic's lien; and we hold that the mere fact of their taking the notes and mortgage without such intention, does not, in law, amount to a waiver, even if such a defense had been pleaded. Chapman v. Brewer (Neb.), 62 N.W. Rep., 320; Baker v. Abrams (Neb.), 61 N.W. Rep., 91; Hill v. Building Co. (S.D.), 60 N.W. Rep., 752; Electric Co. v. Norris (Mich.), 59 N.W. Rep., 151; Kilpatrick v. Railroad Co. (Neb.), 57 N.W. Rep., 664; Smith Vaile Co. v. Butts (Miss.), 16 So. Rep., 242; Central Trust Co. v. Richmond, N. I. B. R. Co., 15 Cow. C. A., 273, 68 Fed. Rep., 90; Manufacturing Co. v. Smith, 40 Fed. Rep., 339; Brick Co. v. Spilman (Md.), 25 Atl. Rep., 297; Davis v. Parsons (Mass.), 32 N.E. Rep., 1117; Hoagland v. Lusk (Neb.), 50 N.W. Rep., 162; Gilerest v. Gottschalk, 39 Iowa 311; 1 Jones, Libns, sec. 1013. See, also, the following Texas authorities on what will not be sufficient to constitute waiver of the vendor's lien: Wasson v. Davis, 34 Tex. 167; Dibrell v. Smith, 49 Tex. 477; Pinchain v. Collard,13 Tex. 335; Flanagan v. Cushman, 48 Tex. 244
[48 Tex. 244]; Perry v. Woodson, 61 Tex. 228; Irvin v. Garner, 50 Tex. 48; Glaze v. Watson,55 Tex. 563. But again, the writer is of opinion that the bank is here, as well as the other parties, without any pleadings to support this contention; and, as this is a defense in the nature of confession and avoidance, the facts should have been pleaded. The general denial, according to the writer's construction of the pleadings, only required Taylor and Bennett to prove that the notes were given for labor performed on and material furnished for the building. This, under the provisions of the Constitution as construed by our Supreme Court in Strang v. Pray, supra, gave them a lien on the building and lots, and the allegation of the bank that its lien is prior and superior to theirs is simply a conclusion of the pleader, and not the statement of a fact, and is not true in this case under the facts proven. The bank cannot insist in this case upon any of the principles of estoppel, for it took the note and mortgage and advanced the money on April 3, 1894, while Taylor was actually at work on the building, and must be held, therefore, to have had legal and full notice of his mechanic's lien and the amount of his debt and of every other fact which inquiry of Taylor would have elicited. At that time Taylor unquestionably had a mechanic's lien, and the taking of the notes and
mortgage afterwards presents no principle of estoppel, even if such a defense had been pleaded. We therefore conclude that the judgment in this case, so far as complained of by Taylor and Bennett, ought to be reversed, and here rendered, so that on Taylor's and Bennett's claims the mechanic's lien on the building and lots be declared and foreclosed, and classed with the other material men's liens as found by the District Court, and that the bank's debt and mortgage be postponed until all the mechanic's liens are paid in full. The judgment otherwise is in all things affirmed; the bank to pay all costs, both here and in the court below; and it is ordered that this judgment be certified to the Probate Court of Tarrant County for observance.