On Motion for Rehearing.
We do not hold in our original opinion, as asserted by appellees in their motion for rehearing, that their homestead “was not improved under the mechanic’s lien contract,” nor do we hold that “the action of appellees in placing rent houses on a part of their homestead tract and putting such property to a use-inconsistent with its use as a home” constituted an abandonment of that part of their homestead under this record. We do hold that as appellees, without fraud, accident, or mistake, executed a lien covering their entire-homestead tract, could not invalidate such lien on the east part of said tract by erecting renthouses on the west part; that while such acts would be such an abandonment as would subject the west part tó execution, independent of the mechanic’s lien contract, such acts would not invalidate the mechanic’s lien covering the east part of the tract.
The trial court does not find, as claimed by appellees, .that they had, before the mechanic’s lien contract was executed, abandoned a part of their homestead tract for the purpose of erecting renthouses thereon. His finding in the judgment is that the mechanic’s lien is null and void on the east part of the tract, but if the judgment of the trial court can be construed to be a finding that, before the mechanic’s lien wds executed, the west part of the-tract was abandoned, then the evidence is not sufficient to support such finding. Appellees also attack as erroneous the finding of this court that they did not build and maintain a fence separating the west part of the tract from the east part thereof.
Mr. Atwood testified that the renthouses were built on the tract he claimed as his homestead when the contract was executed. That there is a fence running east and west between the two renthouses. Prior to the erection of the renthouses, there was a fence of woven wire extending north and south about seventy-two feet east of the west property line of the entire tract. That this fenced off the west part of the tract which they were using as a garden and chicken yard. That when the appellants began the improvements, they tore down that fence, and some time thereafter he put a picket gate between the northwest corner of his old garage and the north property line and tied some of the woven wire to the southwest corner of his old garage, and run it to the northwest corner of the new garage. That Mr. Wilson took some of the woven wire and tied it to the southeast corner of the new garage, and extended it to the south property line. That the fence is wrecked, and they walk across it in going from one part of the lot to the other whenever they hav.e occasion to pass back and forth.
Mrs.. Atwood testified that, when appellant’s representative came to negotiate with them about the renthouses, they were living there, occupying and claiming the tract as their home. That “We still claim that as our homestead. As to whether we claim either of the two rent houses as our homestead, we claim the land. ⅜ ,⅞ ⅜ That whole tract has been our home ever since we moved on. it.” The west part of the tract before the *163houses were built was used for chickens and garden. “The whole tract is as much our homestead as it ever was.” There is a little gate tied to the corner of the garage, and is used to go back and forth across the land; “the fence along there is practically down.”
The testimony is insufficient, we think, to show that the appellees abandoned their homestead rights to the west part of the tract at or before the execution of the mechanic’s lien contract, or that appellant understood ■such to be their intention, nor is it sufficient to show that appellees built and maintained a fence segregating the west part from the rest of the tract.
If appellees had maintained a fence separating their residence from their garden and chicken yard, which they testified, in effect, that they were using for “family purposes” not “occasionally” but continuously, such acts prior to the erection of the renthouses would not constitute an abandonment of the garden and chicken yard as a part of their homestead, and the testimony fails to show that, after the erection of the renthouses, a fence was maintained segregating the land into two tracts.
The appellees also insist that “the alleged mechanic’s lien of appellant was not given or created by the mechanic’s lien contract. Such liens are not created by contracts. Such lien is given only by statute and the Constitution.”
It is true that the courts have held that section 37 of art. 16 of the Constitution of the state is self-enacting and that mechanics, artisans, and materialmen, have a lien upon a building made or repaired by them for the value of the labor done or material furnished therefor. However, section 50 of art. 16 protects the homestead of a family from forced sale for the payment of all debts, except purchase money and taxes, or “for work and material used in constructing improvements thereon, and in this last case only when the work and material are contracted for in writing, with the consent of the wife given in the same manner as is required in making a sale and conveyance of the homestead.”
Whether the lien is created by the Constitution or by contract on the homestead is immaterial to a disposition of this case, because it is certain that, in order to fix and secure the lien against the homestead for improvements, article 16, § 50 of the Constitution, and the statutes based thereon, must be complied with. It is conceded that this contract-lien was .executed and delivered in conformity with the Constitution and statutes (Rev. St. 1925, art. 3839).
The appellees in their motion for rehearing assert that the judgment of the trial court includes attorney’s fees provided for in the note. This does not appear in the face of the judgment, but, by a calculation of the principal and interest on the balance due, this contention seems to be correct. The appellant was entitled to recover a personal judgment against W. IT. Atwood for the attorney’s fees as well as the principal and interest, but, as we hold that the appellant is entitled to a foreclosure of his lien on the entire tract of land, the attorney’s fees must be excluded from the amount for which the property is sold under order of sale. Summerville v. King et al. (Tex. Sup.) 84 S.. W. 643; Harn v. American Mutual Bldg., etc., Sav. Ass’n, 95 Tex. 79, 65 S. W. 176.
The motion for rehearing is overruled.