On Petition for Rehearing.
Davis, J.Counsel for appellees, on petition for rehearing, have earnestly and ably argued the question involved in this appeal. On the theory that the material had been prepared and constructively furnished for improvement of the hotel property prior to the 20th of June, we may assume that appellees were then in position to enforce the lien for $435.00 against the appellant and the property. In other words, appellant was liable for the material so furnished and the amount was secured by the lien. This is on the theory that appellees had parted with the title to the material. They certainly could not retain the title to the material and enforce the lien therefor against Barnett and his property at the same time. In other words, if they owned the material after the 20th of J une, then it is evident that the material had not, prior thereto, been, in fact, furnished by them in making the improvement.
Their right of action on the lien filed on June 20, was waived and lost by subsequently asserting title to the material and selling the same to Clarks. In other words, appellees cannot now maintain and enforce the lien filed on June 20, for material which they afterward sold to Clarks, although it was subsequently *440used in making the improvement. If they had filed a lien after they furnished the material for the improvement, they could have enforced it against Barnett and the property. In other words, after furnishing said material no notice of an intention to hold a lien on the property was filed. The effort, however, in this action is to enforce a lien filed on June 20, for material after-wards sold and furnished by appellees to Clarks, and subsequently used in the improvement of the hotel property.
The material must be furnished either actually or constructively for use in the improvement before the lien can be acquired. The lien can only be acquired by filing the notice as provided in the statute. It is true the material was furnished by appellees for the improvement, and that it was in fact used in the improvement of the hotel property, but it was so furnished and used after the lien sought to be enforced in this action was filed.
The fact that Barnett repudiated his contract with appellees, and that he at all times was the equitable owner of the property, and that appellees furnished the material used in making the improvement, did not create the lien. The lien is a creature of the statute, and can only be created by filing the notice after the material is furnished. In this case, it clearly appears that after the lien was filed on June 20, the appellees retained the actual possession of the material and that they subsequently sold it to Clarks, and that after they furnished and used the material in making the improvement, they filed no notice of their intention to hold the lien.
Notwithstanding Barnett accounted to Clarks for the improvement made by appellees during the time Clarks were in possession of the property, the appellees were entitled to “the fruits of their toil and in*441dustry,” but the court has no power to create a lien in their favor for the purpose of securing this result.
Their misfortune arises out of the failure to file the proper notice “within sixty days after performing-such labor or furnishing such material.” In other words, appellees waived any rights in their favor arising out of the constructive furnishing of the material to Barnett prior to June 20, by afterwards in fact selling such, material to Clarks for a) different price. The fact that Barnett unjustly repudiated his contract with appellees, and that he “requested plaintiffs to- see the persons to whom he had sold said hotel about the same,” did not, in the absence of the statutory notice, create a lien against him or the hotel property for the material subsequently furnished and used by them in making the improvement. It clearly appears, in the same connection, that, immediately before the request was made, “plaintiffs tendered said Barnett said urinals, closets, and other work, and offered to set them up and complete them in said hotel in accordance with said contract, but Barnett refused to*accept said offer or to allow said work to be done.”
Assuming that this act of Barnett’s was wrong and unjust, the undisputed fact remains that appellees afterwards furnished the material in making the improvement, and we know of no principle of law under which they can now enforce against Barnett and the hotel property the lien filed on June 20, for material afterwards sold by them to Clarks and subsequently used in making such improvement. If appellees had, after the 20th of June, treated the material as belonging to Barnett, or as having been furnished for the improvement under the contract with him, a different question would be presented; but on the contrary, they afterwards retained possession of the material, assumed to be the owners thereof, and sold the same *442for a different price to Clarks, and, after furnishing and using the same in making the improvement failed to file any notice of an intention to hold a lien therefor.
The petition for rehearing is overruled.