ON PETITION FOR REHEARING March 18, 1937. Good cause appearing therefor, it is hereby ordered that a rehearing is granted as to Shell Oil Company and The Texas Company only, and that the same is hereby set down for oral argument on the 22d day of April, A.D. 1937, at ten o'clock a.m.
ON REHEARING July 31, 1937. 70 P.2d 767.
1. LIENS. An equitable lien may arise out of either express or implied contract. *Page 253 2. LIENS. Where equitable lien arises out of express contract, intention to create lien must clearly appear. 3. LIENS. Where equitable lien arises out of implied contract, attendant circumstances must clearly indicate intention of parties to create lien on specific property. 4. LIENS. A mere moral obligation alone is not sufficient to support an equitable lien. 5. LIENS. No act of highway contractor, job creditors, or contractor's surety, done subsequent to furnishing of labor or material, could create an equitable lien in favor of job creditors on money owed to contractor by highway department. 6. LIENS. Court proceedings, instituted by highway contractor's surety to restrain payment to contractor of balance due to contractor from the state and to compel its application to payment of debts incurred by contractor in performing contract, did not create an equitable lien. 7. LIENS. In order for equitable lien to attach, there must be specific fund against which lien can vest. 8. LIENS. Where there was an express contract between highway department and highway contractor, equitable lien would arise in favor of materialmen and laborers only if it clearly appeared that there was an intention to create such a lien. 9. LIENS. No lien can attach to a highway or other property of the state or a subdivision thereof. 10. LIENS. As respects claimed equitable lien, neither state nor highway department was under legal or moral obligation to pay materialmen and laborers for materials and services furnished to highway contractor. 11. LIENS. To entitle one to a lien, it is not sufficient that it may have been legislative intent to create an equitable lien, but such intent must clearly appear. 12. LIENS. The doctrine of equitable lien is not a limitless remedy to be applied according to measure of conscience of particular chancellor. 13. LIENS. For lien to arise in pursuance of doctrine of equitable lien, agreement must deal with some particular property, either by identifying it, or by so describing it that it can be identified, *Page 254 and must indicate with sufficient clearness an intent that property so described, or rendered capable of identification, is to be held, given, or transferred as security for the obligation. 14. LIENS. Where express contract between highway department and highway contractor contained no expression of intention that an equitable lien should exist in favor of materialmen and laborers, no equitable lien on money retained by highway department and owed to contractor arose in favor of materialmen and laborers.