Grapette Co. v. Bowden

165 F.2d 487, 1947 U.S. App. LEXIS 2072

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 9, 1947
• Docket: No. 11898
• Status: Published

Opinions

HOLMES, Circuit Judge.

This is a controversy over the priority of liens. The question is whether a mechanic’s lien is superior to the lien of a certain deed of trust. The judgment appealed from gave priority to the mechanic’s lien.

In January, 1946, L. R. Bowden made a contract with the Ibis Manufacturing Co., now bankrupt, for the laying of a cement foundation, and the placing of permanent metal screws and bolts therein, for the holding of a prefabricated metal house that was to be removed from another part of the county and attached to the cement foundation on the bankrupt’s property in Texas. Bowden performed this service; and, within the statutory time, filed notice of his mechanic’s lien with the county clerk in accordance with the statute relating to the fixing of such liens.

The Grapette lien arose in February, 1946, and its validity is unquestioned, except as to its asserted priority over the Bowden lien. Both the referee and the court below found that the intention of all parties was that the building should be a permanent fixture, and that Bowden, in fixing his lien, complied with the requirements of the state statute relating to mechanic’s liens. From this it follows that the Grapette Hen was subse- - quent in time and is subordinate in right to Bowden’s lien.¹

The judgment appealed from is affirmed.

1 Hutchins v. Masterson, 46 Tex. 551, 26 Am.Rep. 286; Pool v. Wedemeyer, 56 Tex. 287; Stuart v. Broome, 59 Tex. 466; Bollinger v. McMinn, 46 Tex.Civ.App. 89, 104 S.W. 1079; Reader v. Christian, Tex.Civ.App., 234 S.W. 155; Hemphill v. Gleason, Tex.Civ.App., 272 S.W. 275; Sprowles v. Youngblood, Tex.Civ.App., 23 S.W.2d 879; Dallas Nat. Bank v. Peaslee-Gaulbert Co., Tex.Civ.App., 35 S.W.2d 221; Malone v. Burdick, Tex.Civ.App., 58 S.W.2d 1048; Investor’s Syndicate v. Dallas Plumbing Co., Tex. Civ.App., 61 S.W.2d 1039; Shamburger v. Bredthauer, Tex.Civ.App., 62 S.W.2d 603; Royal Indemnity Co. v. American District Steam Co., Tex.Civ.App., 88 S.W.2d 1091; Clark v. Clark, Tex.Civ.App., 107 S.W.2d 421; Oil Field Salvage Co. v. Simon, 140 Tex. 456, 168 S.W.2d 848; 19 Texas Jurisprudence, 707, par. 4; Texas Constitution, Article XVI, Sec. 37, Vernon’s Ann.St.; Revised Statutes of Texas of 1925, Articles 5452 and 5453, Sec. 2, Vernon’s Ann.Civ.St. arts. 5452, 5453, subd. 2.