ON SUGGESTION OF ERROR. Upon a former day of this term, in an opinion reported in131 So. 806, we held that the appeal of Mrs. B.E. Stubbs from a judgment fixing a lien on a residence owned and erected by her was controlled by the case of Chears Floor Screen Company v. Mrs. Daisy Gidden et al., 131 So. 426, and that, as section 2260, Code 1930, was construed in that case, there was no lien on the residence for material that had been furnished at the instance and on the credit of a person not the owner of the building and the land upon which it was located.
We likewise held that, as to the cause of the intervening petitioner, Capital Paint Glass Company, the petition, *Page 846 proof, and jury's finding thereon did not take it out of the rule announced in the Gidden case, supra, that, where material is furnished by a person other than the owner for the partial construction of a building, there is no lien on the building, although such material may have been furnished with the knowledge and consent of the owner of the lot and building.
The Capital Paint Glass Company has filed a suggestion of error in which the facts are reargued, and it is contended that the facts bring the cause within the rule announced in the original opinion in this cause that a building erected on a lot by the owners thereof is subject to lien for materials furnished at the instance and request of one of the owners, though charged to a third person's account. All the evidence and matters presented by the suggestion of error were fully considered upon the previous hearing of the cause, and we think the conclusion then reached was correct, and therefore this suggestion of error will be overruled.
The appellee Planters' Lumber Company has filed a suggestion that we erred in reversing the judgment of the court below in so far as it attempted to fix a lien in its favor against the residence of the appellant Mrs. B.E. Stubbs; the first contention being that, upon the facts, the cause is not analogous to the Gidden case, supra, and that the appellant's right to a lien is not controlled by section 2260, Code 1930, and the construction placed thereon in the Gidden case. Upon this point the suggestion of error, and argument in support thereof, is largely a reargument of the contentions advanced in the original brief of counsel, and we do not think further response thereto is necessary.
The second contention advanced by counsel in support of the suggestion of error is that the construction of section 2260, Code 1930, in the case of Planters' Lumber Co. v. Tompkins,111 Miss. 307, 71 So. 565, 566, which case was overruled by the case of Chears Floor Screen *Page 847 Company v. Gidden et al. (Miss.), 131 So. 426, was a rule of property which must be applied in this case, and consequently will require an affirmance of the judgment. The Tompkins case held that a husband, occupying, with the wife, a house constructed, altered, or repaired, with the material furnished by the husband, was "another person" within the meaning of section 2260, Code 1930, and that by virtue of the provisions of this statute, a house or building erected, constructed, altered, or repaired, "at the instance of a tenant, guardian, or other person, not the owner of the land," was subject to a lien for the material furnished by such tenant, guardian, or other person on his own account. In that case, the constitutionality of the said statute, when so construed, was not considered, but in the Gidden case, supra, it was held that to construe the statute — as was done in the Tompkins case — to mean that it created a materialmen's lien on an entire building for material furnished for the partial construction, or the alteration and repair, of a building by a person other than the owner on his own account, would render the statute unconstitutional as taking property without due process. No vested rights flow from, or are acquired by, the enactment of an unconstitutional statute, and the rights by the appellee materialman under the construction of the statute in the Tompkins case were no greater than would have been acquired in the first instance by the enactment of an unconstitutional statute; consequently, the suggestion of error will be overruled.
Overruled. *Page 848