On Appellants’ Motion for Rehearing.
HAMILTON, Chief Justice.Appellants call our attention in a motion for rehearing to two points in the original brief which we believe will bear reconsideration. One point raised is that the trial court erred in assuming that' all the mechanics’ and materialmen’s liens bought by ■the Mortgage Investment Company were filed on the properties, and the other is in .substance that the money paid by the Mortgage Investment Company for claims secured by statutory and/or constitutional liens was equivalent to and advancement under .the deed of trust of-the Mortgage Investment Company.
In 'our original opinion we treated the statutory liens and the constitutional liens which were purchased by the Mortgage Investment Company as having equal priority, as did the trial court, the effect of our holding being that since the statutory liens became effective from their inception, which made them prior in time to the filing ■of the deed of trust lien, also the constitutional liens which were purchased by ap-pellees were also prior in time to the deed of trust lien. In this respect we were wrong. In the absence of evidence showing when the constitutional liens became effective, that is, when the labor was done and when the material was furnished, there is no basis for holding they have equal priority with the statutory liens. A constitutional lien which is established subsequent to the acquisition of rights by third parties would not have the same advantage as a mechanic’s and materialman’s lien which has been filed within the statutory limits. By virtue of compliance with the statute, a mechanic’s and materialman’s lien which arises after the recording of the deed of trust lien, as- in this case, reverts back to the time the building was begun, but not so with a constitutional lien where the statute has not been complied with. Art. 5459, R.C.S., Art. 5468, R.C.S., Nichols v. Dixon, 99 Tex. 263, 89 S.W. 765 ; 29 Tex.Jur. 456-458, 512-514.
Appellees cite the case of Tomlinson v. Higginbotham Bros., Tex.Civ.App., 229 S.W.2d 920, as authority for the proposition that the constitutional lien and statutory lien shall be treated as the same, but the situation in that case was different from the one before us. The trial court found that the statutory lien and the constitutional *641lien were created'at the same time, and that the labor and material involved with both1, typé liens had all been furnished in the. construction of the building before the deed of trust lien was filed, and of all of which the holder of the deed of trust- lien had notice. In this case there is no-evidence that the constitutional liens which were purchased by appellee were for labor done or material furnished prior to the recording of appellee!s deed-of trust-lien.
- The case of Oriental Hotel Co. v. Griffiths, 88 Tex. 574, 33 S.W. 652, 30 L.R.A. 765, holds that those holders of liens who comply with the filing statute with reference thereto had a prior lien to the holder of the deed of trust, even though labor was. done and material furnished subsequent to the recording of the deed, of trust lien. However, such holding was' based purely on the fact that said liens were statutory. It is said in Crabb v. William Cameron & Co., 63 S.W.2d 367, loc. cit. 368, by Commission of Appeals:
“The mechanic’s lien or material-man’s lien did not exist in common law or in equity, but is created purely by the law; Where the provisions of the law are fully met, and the conditions prescribed by the law exist, the lien provided by the statute attaches as a matter of course by virtue of the facts, but, where these conditions do- not exist, or where the provisions of the .law are not complied with,-no lien at- , taches which has priority over liens which have attached previously.”
' We have searched diligently and find no case where it has been held that a purely constitutional lien established subsequent to the creation of liens which have attached previously, take priority. Since the stipulation of facts upon which the court below tried this casé did not specify which of the claims bought by the Mortgage Investment Company were secured by constitutional’ liens -and- which, were secured by statutory liens, it was impossible for the trial court to determine which of the liens purchased held priority over the Deed of -Trust lien. The Mortgage Investment .Company had a right to purchase the statutory liens to, protect its. lien, which was second to the. statutory liens, but the mere purchase of the constitutional liens without reference to when they were established does not make them prior.in time to the deed of trust lien, and therefore prior to the vendor’s lien held by appellants. - -
This brings . us to another point raised by appellants in their motion for re-, hearing; - that the trial court erred in holding in effect that since all the claims pur-, chased by Mortgage ■ Investment Company • were for labor and material that went into the buildings, the money paid therefor was equivalent, to being advanced to 'Chaney & Singleton under the deed of-trust, and there-, fore was ahead of and prior .to the vendor’s lien held by appellants. In approving thati holding of the trial court we were in error. The appellants, subordinated their vendor’s lien to the deed of trust of Mortgage Investment Company when it was given, to secure payment of advances made to Chaney & Singleton, the- owners of the property in question. Under the stipulation $73,450 was advanced to Chaney &. Single- ; ton by appellee, and it was stipulated that that was the amount that they owed 'under the deed of trust. ' The fact that Chaney & Singleton owed these various holders of statutory liens and constitutional liens and that appellee bought them up some several' months after suit wa9 filed in this case is not equivalent to having advanced Chaney & Singleton moneys under the deed of trust. The subordination agreement must ' be strictly construed, and cannot be enlarged to cover any additional amounts than were actually advanced to Chaney & Singleton under the deed of trust.
In view of the fact that the court could not write a proper . judgment under the facts before him, and that the case has not been fully developed, on the basis of the two points herein discussed, we reverse and remand the case for a new trial.