This record is silent as to the contract relation existing between F. S. Taylor and Mrs. Hedrick respecting the lot in controversy at the time the material was furnished and the note executed. The court merely finds that at the time the legal title was in Mrs. Hedrick, and that Taylor induced the appellees to believe that he would eventually become the owner of the lot. In the absence of a statement of facts, it will be presumed that the conclusions of fact found by the court are fully sustained by the evidence. But the court does not find whether the property was or was not the homestead of Taylor and wife at the time the material was furnished and the note executed. However, it is stipulated in the note that the material had been furnished in the construction and repair of appellants’ homestead and hotel, situated upon the lot.
While the legal title to the lot might have then been in Mrs." Hedrick, still there might have existed such an arrangement between her and appellants, respecting the lot, as would have clothed it with the homestead character, except as against Mrs. Hedrick. Then, in the absence of any finding of this court to the effect that the property was not the homestead of appellants at the time the note was executed, that presumption could not be indulged in support of the judgment. In view of the fact that by the recital in the note the property is declared to be the homestead of appellants, the contrary presumption could not be indulged at the expense of the record.
Assuming that the property was then the homestead of appellants, there seems to be two fatal objections to maintaining the suit as brought. By the terms of the note it appears that the material had been furnished previous to its execution, the amount for which the note was given “being a balance due them for lumber and material furnished, etc.,” as stated in the note. Hence the material was not furnished in pursuance of the contract upon which the suit is founded, and that is essential to creating the lien upon the homestead. General Laws, 1876, p. 91, sec. 4; Reese & Jandon v. Corlew, 60 Tex., 71; Const., art. 16, sec. 50.
In Martin v. Roberts, 57 Tex., 564, it was in effect said, that when the written contract recites that the mechanic’s lien is reserved that it would constitute an express lien by contract, independent of the mechanic’s lien which the law creates, when its terms have been complied with. But, considering the property as the homestead of appellants at the time the contract was made, the constitution declares that “no mortgage, trust deed or other lien on the homestead *242shall ever be valid, etc.” So that no lien created by contract, except as provided by the constitution, would be valid.
It appears that the case was not fully developed in the court below, at least it is so presented by the record before the court, that the justice of the case might not be attained by any judgment that could be rendered upon it. Hence we recommend that the judgment be reversed and the cause be remanded. In view of another trial, it should be remarked that if it be made to appear that appellants had no such equity or interest in the lot, at the time the contract was made, as would support the homestead claim, then, as a matter of course, the features of the case heretofore considered would not interpose any obstacle to the foreclosure of the lien. Moreover, if appellants were in possession of the land, notwithstanding they may not have had such equity or interest in it as would support the homestead claim, nevertheless, if they represented to appellees that they would secure the title to it, and thereby induced them to furnish the material on the basis of the lien expressed in the contract, then, as between the parties to the contract, no good reason is perceived why the lien would not attach upon the acquisition of title by appellants.
In Mitchell v. Winslow, 2 Story, 630, it was remarked by Justice Story: “It seems to me the clear result of all the authorities that whenever the parties by their contract intend to create a positive lien or charge, either upon real or personal property, whether in esse or not, it attaches in equity as a lien or charge upon the particular property as soon as the assignor or contractor acquires title thereto.”
See also, Wright v. Birchee, 72 Mo., 179; Butterford v. Stewart, 79 Mo., 216; Morrill v. Noyes, 56 Me., 458.
Reversed and Remanded.
[Opinion adopted December 8, 1885.]
Justice Stayton did not sit in this case.