F. K. Potshuisky v. C. G. Krempkan, 26 Tex. 307

Moobe, J. The appellant insists, that as it appeared at the time of the trial, that he had paid appellee more than the amount he had agreed to pay him for the masonry work in the first contract that was made between them, appellee's mechanic’s lien was extinguished ; and although he should have had judgment for the additional amount that was still due, yet as the premises were appellant's homestead, appellee was not entitled to a decree for their sale by virtue of his trust deed. This position, however, we do not think can be successfully maintained.

Although the amount for which appellant executed the notes sued on, to secure payment of which the deed of trust was given, is larger than that mentioned in the first contract, yet as the work done by appellee in building the house seems to have been the only consideration for which they were given, we infer that the additional amount must have been for additional work not stipulated for in the first contract. If this were the case, we think, as appellant insists, that appellee could not rely upon his mechanic’s lien as a security for it, because this would be for work not done under a contract in writing.

But appellee’s right to a decree for a sale of the premises does not depend, as appellant seems to suppose, simply upon his statutory mechanic’s lien. The entire amount of the debt now sued on, whether it was entirely for the building of the house or not, accrued, and the deed of trust to secure its payment was enacted,, before the premises became appellant’s homestead; and by express contract between them, appellant went into possession of the premises as appellee’s tenant, and held them under him and in subordination to his lien.

Appellant could, under these circumstances, with no more propriety set up a claim to the premises against appellee, than if he had entered upon them and made them his homestead, without laving completed the payment of the purchase money for the lot. Until .the payment of the debt, with which the premises were charged by his voluntary contract; appellee had the superior right to them, and appellant could not, by any mere subsequent acts of his, annul or destroy it. There is no error in the judgment, and it is therefore affirmed. Judgment affirmed.