Bonner, Associate Justice.
It is contended by appellantPool that appellees Moore & Co. and Wedemeyer & Schulte had no right to intervene in this case.
[633]*633We have no statute providing for the right of intervention, but our practice on this subject, as said in Whitman v. Willis, 51 Tex., 425, is probably derived through the Ecclesiastical Courts of England and the modifications of the civil law as found in the State of Louisiana, and rests upon the principle that a party should be permitted to do that voluntarily which, if known, a court of equity would require to he done.
In 2 Chitty’s General Practice, 492, it is stated that “ if any third person consider that his interest will be affected by a cause which is pending, he is not bound to leave the care of his interest to either of the litigants, but has a right to intervene or be made a party to the cause, and to take on himself the defense of his own rights, provided he does not disturb the order of the proceedings.”
In Brown v. Saul, 4 Mart., N. S., La.,) 434, decided in the Supreme Court of Louisiana, to which State we can very appropriately look for light upon this question, it was held, that to give this right the intervenor should have with one of the original parties a union of interest in relation to the subject-matter in dispute, and that this interest should be founded on some right, claim, or lien, either conventional or legal, directly and closely connected with this subject-matter.
Mr. Pomeroy, in his work on Remedies and Remedial Rights, sec. 430, after a review of the decisions in Iowa, California, and Louisiana, sums up the doctrine of intervention in the following language:
“ The intervenor’s interest must be such, that if the original action had never been commenced, and he had first brought it as the sole plaintiff*, he would have been entitled to recover in his own name to the extent at least of a part of the relief sought; or if the action had first been brought against him as a defendant, he would have been able to defeat the recovery, in part at least. His interest may be either legal or equitable.”
It is believed that our practice substantially conforms to these principles, and permits intervention in suits for real or personal [634]*634property. (Field v. Gantier, 8 Tex., 74; Eccles v. Hill, 13 Tex., 65; Burditt v. Glasscock, 25 Tex. Supp., 45; Smith v. Allen, 28 Tex., 497; Smalley v. Taylor, 33 Tex., 668; Mussina v. Goldthwaite, 34 Tex., 125; Whitman v. Willis, 51 Tex., 421; Sayles’ Prac., ch. 14.)
Upon the issues as presented by the pleadings, we are of opinion that the claims of the original plaintiff, Sanford, and of the intervenors were so intimately connected, and so dependent the one upon the other, as to present a proper case and subject-matter for intervention, so that the respective rights and interests of all the parties, including the plaintiff himself, could be adjusted and protected. (Phil. on Mech. Liens, sec. 205; Loonie v. Hogan, 5 Seld., (9 N. Y.,) 440.)
To hold otherwise might, subject the property to the very liability suggested by appellant—the enforcement of two or more liens for the same indebtedness. (Waldroff v. Scott, 46 Tex., 1.)
The demurrer of appellant Pool, defendant below, to the pleadings of Sanford, the original plaintiff’, so far as he sought to enforce his alleged mechanic’s lien, should have been sustained. The right to such lien depends upon a substantial compliance with the statute giving the same.
The requisites of the statute are necessarily descriptive of the lien, and if omitted in the pleadings should subject them to demurrer. (Tinsley v. Boykin, 46 Tex., 599; Sutherland v. Ryerson, 24 Ill., 517; Shaw v. Allen, 24 Wis., 564.)
The only allegation in the petition, in regard to the lien, was that plaintiff claimed “that the work and materials furnished by him in his business as a mechanic gave him a lien upon the said dwelling and lots.”
If, however, the pleadings of plaintiff had been sufficient on general demurrer, they were clearly insufficient when tested by the special demurrers of defendant, and these should have been sustained.
The same objection applied to the petition of intervenors Moore & Co., so far as they sought a lien, either as principal [635]*635or sub-contractors, unless the recitals in the exhibit to their petition can be taken as affirmative allegations of the grounds of their alleged lien. This exhibit was referred to only as an itemized account of the articles furnished' by them, and of tho value of the same. It shows, however, that it was recorded and a copy served upon defendant Pool as required by statute to fix the lien, but there were no allegations to this effect in the pleading itself.
Rule 19 of this court, for the government of the District Courts, (47 Tex., 620,) provides that exhibits may be attached to a pleading, and referred to as such, in aid and explanation of the allegations therein; but this will not relieve the pleader from making the proper allegations, of which the exhibits maybe the evidence, in whole or in part.
This is but declaratory of what the proper practice was before the adoption of the rules, and tested by it, the demurrer to so much of the pleadings of Moore & Co. as claimed a lien should have been sustained. These iutervcnors did not, by-proper and appropriate allegations, show that either the original plaintiff, Sanford, or they themselves were entitled to a mechanic’s lien.
The petition of Wedemeyer & Schulte did not show that Sanford was entitled to the mechanic’s lien, but it was sufficient to entitle them, if sustained by the evidence, to such lien as principal contractors themselves. There is no statement of facts in the record, hut there were certain special verdicts in response to issues made up under the direction of the court, and which, under the statute, are “ conclusive between the parties as to the facts found.” (Paschal’s Dig., art. 1469; Rev.Stats., art. 1332.)
' Although there seems .to be some inconsistency in these special verdicts, yet, in our opinion, their legal effect, as presented to us, is, that the contracts with both Moore & Co. and Wedenmyer & Schulte were made with Sanford, tho original contractor, and not with appellant Pool, the owner. If this were so, it would make them sub-contractors under Sanford, [636]*636and not original contractors. As to intervenors Wedemeyer & Schulte, in the absence of a statement of facts we would presume that the evidence sustained their allegations that they were original contractors, and the judgment of the court below to this effect, were it not for this affirmative finding by the jury to the contrary. Under their pleading and the special issues, the court erred in adjudging the lien in their favor.
For the error of the court in overruling the exceptions of appellant Pool to the original petition of plaintiff, Sanford, and to the petition for intervention of Moore & Co., in so far as the same claimed the mechanic’s lien, and the further error in rendering judgment on the special issues in favor of both intervenors for the enforcement of such lien, the judgment must be reversed.
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Bonner, Associate Justice.
It is contended by appellantPool that appellees Moore & Co. and Wedemeyer & Schulte had no right to intervene in this case.
[633]*633We have no statute providing for the right of intervention, but our practice on this subject, as said in Whitman v. Willis, 51 Tex., 425, is probably derived through the Ecclesiastical Courts of England and the modifications of the civil law as found in the State of Louisiana, and rests upon the principle that a party should be permitted to do that voluntarily which, if known, a court of equity would require to he done.
In 2 Chitty’s General Practice, 492, it is stated that “ if any third person consider that his interest will be affected by a cause which is pending, he is not bound to leave the care of his interest to either of the litigants, but has a right to intervene or be made a party to the cause, and to take on himself the defense of his own rights, provided he does not disturb the order of the proceedings.”
In Brown v. Saul, 4 Mart., N. S., La.,) 434, decided in the Supreme Court of Louisiana, to which State we can very appropriately look for light upon this question, it was held, that to give this right the intervenor should have with one of the original parties a union of interest in relation to the subject-matter in dispute, and that this interest should be founded on some right, claim, or lien, either conventional or legal, directly and closely connected with this subject-matter.
Mr. Pomeroy, in his work on Remedies and Remedial Rights, sec. 430, after a review of the decisions in Iowa, California, and Louisiana, sums up the doctrine of intervention in the following language:
“ The intervenor’s interest must be such, that if the original action had never been commenced, and he had first brought it as the sole plaintiff*, he would have been entitled to recover in his own name to the extent at least of a part of the relief sought; or if the action had first been brought against him as a defendant, he would have been able to defeat the recovery, in part at least. His interest may be either legal or equitable.”
It is believed that our practice substantially conforms to these principles, and permits intervention in suits for real or personal [634]*634property. (Field v. Gantier, 8 Tex., 74; Eccles v. Hill, 13 Tex., 65; Burditt v. Glasscock, 25 Tex. Supp., 45; Smith v. Allen, 28 Tex., 497; Smalley v. Taylor, 33 Tex., 668; Mussina v. Goldthwaite, 34 Tex., 125; Whitman v. Willis, 51 Tex., 421; Sayles’ Prac., ch. 14.)
Upon the issues as presented by the pleadings, we are of opinion that the claims of the original plaintiff, Sanford, and of the intervenors were so intimately connected, and so dependent the one upon the other, as to present a proper case and subject-matter for intervention, so that the respective rights and interests of all the parties, including the plaintiff himself, could be adjusted and protected. (Phil. on Mech. Liens, sec. 205; Loonie v. Hogan, 5 Seld., (9 N. Y.,) 440.)
To hold otherwise might, subject the property to the very liability suggested by appellant—the enforcement of two or more liens for the same indebtedness. (Waldroff v. Scott, 46 Tex., 1.)
The demurrer of appellant Pool, defendant below, to the pleadings of Sanford, the original plaintiff’, so far as he sought to enforce his alleged mechanic’s lien, should have been sustained. The right to such lien depends upon a substantial compliance with the statute giving the same.
The requisites of the statute are necessarily descriptive of the lien, and if omitted in the pleadings should subject them to demurrer. (Tinsley v. Boykin, 46 Tex., 599; Sutherland v. Ryerson, 24 Ill., 517; Shaw v. Allen, 24 Wis., 564.)
The only allegation in the petition, in regard to the lien, was that plaintiff claimed “that the work and materials furnished by him in his business as a mechanic gave him a lien upon the said dwelling and lots.”
If, however, the pleadings of plaintiff had been sufficient on general demurrer, they were clearly insufficient when tested by the special demurrers of defendant, and these should have been sustained.
The same objection applied to the petition of intervenors Moore & Co., so far as they sought a lien, either as principal [635]*635or sub-contractors, unless the recitals in the exhibit to their petition can be taken as affirmative allegations of the grounds of their alleged lien. This exhibit was referred to only as an itemized account of the articles furnished' by them, and of tho value of the same. It shows, however, that it was recorded and a copy served upon defendant Pool as required by statute to fix the lien, but there were no allegations to this effect in the pleading itself.
Rule 19 of this court, for the government of the District Courts, (47 Tex., 620,) provides that exhibits may be attached to a pleading, and referred to as such, in aid and explanation of the allegations therein; but this will not relieve the pleader from making the proper allegations, of which the exhibits maybe the evidence, in whole or in part.
This is but declaratory of what the proper practice was before the adoption of the rules, and tested by it, the demurrer to so much of the pleadings of Moore & Co. as claimed a lien should have been sustained. These iutervcnors did not, by-proper and appropriate allegations, show that either the original plaintiff, Sanford, or they themselves were entitled to a mechanic’s lien.
The petition of Wedemeyer & Schulte did not show that Sanford was entitled to the mechanic’s lien, but it was sufficient to entitle them, if sustained by the evidence, to such lien as principal contractors themselves. There is no statement of facts in the record, hut there were certain special verdicts in response to issues made up under the direction of the court, and which, under the statute, are “ conclusive between the parties as to the facts found.” (Paschal’s Dig., art. 1469; Rev.Stats., art. 1332.)
' Although there seems .to be some inconsistency in these special verdicts, yet, in our opinion, their legal effect, as presented to us, is, that the contracts with both Moore & Co. and Wedenmyer & Schulte were made with Sanford, tho original contractor, and not with appellant Pool, the owner. If this were so, it would make them sub-contractors under Sanford, [636]*636and not original contractors. As to intervenors Wedemeyer & Schulte, in the absence of a statement of facts we would presume that the evidence sustained their allegations that they were original contractors, and the judgment of the court below to this effect, were it not for this affirmative finding by the jury to the contrary. Under their pleading and the special issues, the court erred in adjudging the lien in their favor.
For the error of the court in overruling the exceptions of appellant Pool to the original petition of plaintiff, Sanford, and to the petition for intervention of Moore & Co., in so far as the same claimed the mechanic’s lien, and the further error in rendering judgment on the special issues in favor of both intervenors for the enforcement of such lien, the judgment must be reversed.
As the cause will be remanded, it is proper that we indicate our opinion upon certain questions which are presented in the record, and which may arise on another trial.
1. To authorize the court to decree to either the original plaintiff or the intervenors a judgment for the enforcement of the mechanic’s lien as original contractors, they must, by appropriate allegations and proof, show that they are entitled to the same. In our opinion, the intervenors Moore & Co. come under the designation, “ any person or firm,” used in the statuto, and are within both its letter and spirit. (Paschal’s Dig., art. 7112.)
2. As heretofore decided by this court, the mere fact that the intervenors were sub-contractors, would not, as such, entitle them to the statutory mechanic’s lien. (Shields v. Morrow, 51 Tex., 393; Horan v. Frank, 51 Tex., 401; Loonie v. Frank, 51 Tex., 406.)
If, however, under appropriate allegations, the testimony should showr that they, or cither of them, were sub-contractors under Sanford, and that they availed themselves of the special provisions of the statute in the nature of a garnishment, and thereby adjusted the “true sum due” them by Sanford as original contractor, and fixed liability upon Pool, the owner, [637]*637for its payment, then, as intimated in Horan v. Frank, supra, in a proper ease, upon sufficient allegations and proof, as in ease of collusion between the owner and the original contractor, or fraud or insolvency of the parties, equity would subrogate the intervenors to the rights of the principal contractor, both to the amount due them as thus adjusted and fixed, and also to the mechanic’s lien to secure the same.
3. Pool, as owner, could not be compelled to pay, including all prior voluntary payments made in good faith, according to the terms of his contract as originally or subsequently made, and for which a lien was fixed and secured under the statute, any greater amount than the contract price. (Paschal’s Dig., art. 4598; Laws 15th Leg., sec. 6, p. 92; Rev. Stats., art. 3176; Doughty v. Devlin, 1 E. D. Smith, (N. Y.,) 634; Russell v. Bell, 8 Wright, (Penn.,) 53; Horan v. Frank, 51 Tex., 401; Phil, on Mech. Liens, secs. 206-213, and authorities cited)
4. To entitle the intervenors to be subrogated to the rights of the principal contractor, the statutory notice in the nature of a garnishment, by service of “an attested account of the amount and value of the work and labor thus performed or materials furnished and remaining unpaid,” must have been given. (Paschal’s Dig., art. 4595.) Mere ordinary notice, information, or knowledge, on the part of the owner, that the principal contractor was indebted to them, would not, of itself, be sufficient to bind the owner.
5. If the testimony should show that the intervenors, as subcontractors, were about to abandon the work because they were apprehensive that the principal contractor would not pay them, or for other good and sufficient reason, and that to prevent this they were induced by the owner, Pool, to continue and complete their part of the work in consideration that he would pay them therefor, this would be a sufficient original understanding to take the contract without the statute of frauds and to bind Pool, and the intervenors could, in any event, recover against him a personal judgment, or a judgment enforcing the mechanic’s lien in their favor as original [638]*638contractors, if they fixed and secured the same under the terms of the statute. (Phil. on Mech. Liens, sec. 213; Holmes v. Shands, 4 Cush., (26 Miss.,) 642; Landis v. Royer, 59 Penn. St, 98.)
[Opinion delivered February 24, 1880.]
The judgment below is reversed and the cause remanded for further proceedings in accordance with this opinion.
BeVERSED • AND REMANDED.