O. T. Bassett v. G. S. Brewer et al., 74 Tex. 554

Hobby, Judge. The construction of articles 3165 and 3166 of the Revised Statutes (Sayles’ Laws of 1885, p. 63) is involved in the question presented upon this appeal. This was a statutory proceeding instituted in the District Court of El Paso County to foreclose an alleged lien claimed by the plaintiff—appellant'—as a material man and lumber dealer, on the lots described belonging to appellee Schuster, by reason of the fact that appellant furnished to appellee (Brewer), original contractor with Schuster, the material used in the erection of a certain house for said Schuster on said lots.

The account filed showed a balance to be due by Brewer of $419.15. A foreclosure of the lien was prayed for against Schuster. It was alleged in the petition that the amount sued for “became due and owing on the 20th day of August, 1887.” The “sworn account of the demand due” plaintiff was filed for record in the office of the clerk of the County Court on the 19th day of September, 1887, the thirtieth day after the accrual of the indebtedness. But it was not recorded until the 20th day of September, 1887.

The petition was excepted to on the ground that it showed upon its face that the verified account was not recorded within thirty days from the date of the accrual of the indebtedness, which exception was sustained. It is provided by

article 3165 that every journeyman, day laborer, or •other person seeking to obtain the benefit of the

article shall, within thirty days after the indebtedness shall have accrued, file an itemized account of the claim in the office of the county clerk of the county where the property is situated. The purpose being to give notice to third-persons of the existence of this lien. In Throckmorton v. Price, 28 Texas, 605, where the title to realty was involved, it was held in effect that a party having properly filed a deed with the clerk is not prejudiced by that officer’s neglect to record it.

It is a generally accepted principle of law that private or individual nights shall not be forfeited or lost by reason of neglect or failure, as in this case, of the officer to perform his duty. Magee v. Chadoin, 30 Texas, 644. It is upon this principle that it has been held “that the right of the owner of a genuine land certificate to vacant public domain attaches at the date of thsfile and application to the proper officer for its survey, .and can not be defeated by the officer’s refusal or neglect to accept the location, or by the issuance of a patent to another.” Montel v. Speed, 53 Texas, 339.

Hothing more can be reasonably required of the person desiring to fix the lien by its registry than to deliver to the officer the “sworn account of the demand due him ” to be filed and recorded. It is no part of his-duty to see that the clerk does his by an actual record of it. We think the court erred in sustaining the exception to the petition on the ground mentioned, the claim showing upon its face that it was filed with the clerk within thirty days from the accrual of the indebtedness.

The affidavit in this case attached to the itemized account of the appellant it is-true does riot contain the language used in

article 3165, “that all just and lawful offsets, payments, and credits have been allowed,” but it is substantially the affidavit prescribed by

article 3166, which

article provides with particularity what shall be done to comply with that part of

article 3165 which refers to unwritten contracts. The appellant having complied with the form furnished by

article 3166, it was not necessary that any other language should have been used. We think the court erred in sustaining the exception to the affidavit on the ground that it did not contain the language “ that all just and lawful offsets, payments, and credits have been allowed,” and that the judgment should be reversed and the cause remanded. Reversed and remanded. Adopted October 22, 1889.