
245 S.W.2d 749 (1952)
MARKS et ux
v.
CALCASIEU LUMBER CO.
No. 10014.
Court of Civil Appeals of Texas, Austin.
January 23, 1952.
Rehearing Denied February 13, 1952.
W. R. Smith, Jr., Austin, for appellants.
Hart, Brown & Sparks by Jack Sparks, Austin, for appellee.
ARCHER, Chief Justice.
Appellee sued the appellants to foreclose a mateialman's lien on Lot No. 15, in Block No. 6, in Edgemont Addition in the City of Austin, Travis County, Texas, known as 1508 Northwood Road, alleging that on or about July 20, 1947, E. A. Anderson, entered into a verbal contract with plaintiff, whereby plaintiff was to furnish certain materials to be used in the construction of a house on the above described *750 real property, and between the dates of July 20, 1947, and November 20, 1947, plaintiff furnished materials which were accepted by Anderson who used the same, and promises to pay to plaintiff the sum of $2,135.64 therefor, but has failed to pay said sum. That the last delivery was made on November 20, 1947, on which date the indebtedness accrued. On March 10, 1948, plaintiff filed with the County Clerk of Travis County a verified itemized account of its claim.
There is a stipulation that the materials were contracted for and received by Anderson and that the sum claimed is reasonable and unpaid.
The appellants claim that the property was the homestead of E. A. Anderson and wife and was purchase for such purpose and further no statutory lien has been acquired as provided by law, and that appellants had no notice, actual or constructive, of any claim of appellee at the time that they bought the property.
The appeal is based on six assignments to the effect that the Court erred in sustaining the objection to the testimony that the Anderson acquired the property with the intention of occupying it as their homestead, and in finding the property was not such homestead, and rendering judgment, and fixing a lien and foreclosing such line, and in rendering the judgment because the improvements were complete don November 27, 1947, and the lien was not filed until March 10, 1948, and during such interim the property was sold to L. L. McCandless, who subsequently conveyed the property to the appellants herein; and that it was error for the Court to render judgment on the theory that under Vernon's Ann.Civ.St. Articles 5452 and 5433 an original contractor could establish a line by filing an affidavit to his itemized account with the County Clerk and that such articles give a lien only to an original contractor when he shall have filed his contract with the County Clerk; and if otherwise, then the law is unconstitutional.
The appellee has made six counter points and are that appellee was an original contractor and had four months in which to file its materialman's line, and that its line was superior to any asserted by appellants, and its line may be established by filing it with the County Clerk, and that the property was not the homestead of the Anderson at the time he entered into the contract, and appellee had a valid assert that the real property was his homestead at the time he entered into the contract, and that the Court was not in error in sustaining the objection to the question of whether or not Anderson acquired the property with intention of occupying it as a homestead, or in any event not reversible error.
The principal issue to be decided is whether or not the property involved was the homestead of E. A. Anderson and his family at the time the agreement was entered into. The burden of providing when the homestead character attached to the property was on the appellants.
The testimony of witness Daggett is that he knew Anderson; that he saw him almost every afternoon; that he fist built a garage, then the house; that he moved into the garage; that the garage was built about June or July; that Anderson moved into the garage in the latter part of June.
W. D. Craig, Jr., testified that Anderson and his wife were living in the garage. Charles M. Morrison, witness for appellants, testified that Anderson was building a house close to his house; that Anderson moved into the back, and that Anderson said he would move into the house when he got his house finished; that he was building that house for his home.
None of the witnesses testified concerning the usage of the property on July 20, 1947, and prior thereto, as a homestead by Anderson, except witness Daggett, whose testimony is apparently based on a mistake, because Anderson had no purchased the Northwood Road property in June, and was living on the Mohle Drive property which he did not sell until July 11, 1947. None of the materials were contracted for orr delivery begun until subsequent to July 21, 1947.
The testimony of Anderson is that he sold the Mohle Drive property on July 10, *751 1947, and moved to the property involved in September 1, 1947, and lived in the garage, and also occupied a portion of the residence and sold the property to McCandless on January 16, 1948.
By deposition Anderson sought to testify that when he purchased the property he intended to use it as a homestead, and objection was sustained to the questions. While this evidence may have been admissible, but in view of the other testimony as to the agreement to buy the materials, the date delivery was begun, the lack or failure of any overt visible use of the property as a homestead; and the further fact that Mr. Anderson had designated the Mohle Drive property as his homestead by an instrument dated June 4, 1947, but not acknowledged until July 26, 1947, and not filed for record until July 28, 1947. We do not believe such testimony, if admitted to be material, and the action of the Court does not constitute reversible error. Anderson's claim of homestead was not available against the claims of the appellee. North East Texas Motor Liness v. Dickson, 148 Tex. 35, 219 S.W.2d 795, 796, 11 A.L.R.2d 1065.
The appellants having pleaded certain defenses, the burden was on them to establish such defenses. Evans v. Galbraith-Foxworth Lumber Co., Tex.Civ. App., 51 S.W.2d 831, error dism.
The evidence is not sufficient to show that the property involved in this case was Anderson's homestead on July 20, 1947, the date of the verbal contract, or on the date appellee began furnishing the materials.
Then too, the evidence must be considered in the light most favorable to the jdugment, disregarding all adverse evidence and indulging every legitimate conclusion which tends to support the jdugment. Construction & General Labor Union Local No. 688 v. Stepheson, 148 Tex. 434, 225 S.W.2d 958; Athans v. Rossi, Tex.Civ.App. 240 S.W.2d 492.
This Court recreantly held in Blackburn v. Temple National Bank, Tex.Civ.App., 216 S.W.2d 233, error ref. n. r. e., that the existence or nonexistence of homestead rights are determined as of the date of the execution of the contact.
The defendant filed a general denial, and denied that plaintiff had a valid materialman's line, on the theory that the land was Anderson's homestead, and that the lien had not been filed within the time fixed by law. Defendant further pleaded two written mechanic's lien contracts, executed by Anderson and wife, as owners and by Funderburgh as contractor, as the only valid lines in existence and that they were bona fide purchasers and had no notice of plaintiff's lien or claim. In its supplemental petition, appellee denied the allegations in appellants' answer that the property was vacant, and that Anderson was resident at another address and that the mechanic lien contracts were shams and devices and were not placed of record until after Anderson had entered into the said verbal agreement, and that McCandless and appellants had actual and constructive notice of its claim at the time the property was conveyed to them.
E. A. Anderson was a general contract and built a number of houses during 1946 and 1947, and purchased materials from appellee for his use; and in July, 1947, Anderson owned several tracts of land and was building six or more hoses, one of which was the one in controversy, dealing directly with appellee.
Anderson designated the property on which he was residing as his homestead by instrument dated June 4, 1947, acknowledge July 26, 194, and filed for record July 28, 1947. The Andersons moved from the Mohle Drive property to an address on Hollywood Street some two weeks after appellee had begun making deliveries of materials to the building site at the Northwood Road property.
We believe that the appellee was an original contractor and has four months in which to file its materialman's lien. There is no question but what Anderson dealt directly with the lumber company in the purchase of the materials. 29 Tex. Jur. 470, Sec. 11, 474, Sec. 14.
In whiteselle v. Texas Loan Agency, Tex.Civ.App., 27 S.W. 309, 312, 313, error refused, the Court said:
*752 "When a person contracts with the owner to furnish material for the building or improvement on premises, and there is no contractor intervening between them, such person is an original contractor, within the meaning of the statute, and has four months within which to fix his line, by filing, etc. * * *
"It is further contended that, if appellants are to be considered as original contractors, they could only fix their line by filing a contract in writing. The lien is given by the constitution, regardless of the character of the contract,whether in writing or verbal * * *."
In the case of Oil Filed Salvage Co. v. Simon, 140 Tex. 456, 168 S.W.2d 848, Judge Sharp quotes the provisions of Article 5453, Revised Civil Statutes of Texas, dealing with original contractors, and on page 852 of 168 S.W.2d states the law of Texas to be as follows: "The term `original contractor' used in the statute means a person furnishing material directly to the owner, and such person has four months in which to file his affidavit and claim. 29 Tex.Jur., p. 536, § 66. And it is immaterial whether the contract for material was verbal or in writing. 29 Tex. Jur., p. 537, § 66."
Since we have held that appellee was an original contractor and had four months to file its lien, it follows that such lien is superior to any claims asserted by appellants.
The last delivery of materials was made on November 20, 1947, but the improvements had not been completed at the time the property was conveyed to L. L. McCandless. Mr. McCandless had inspected the property ion November and December while it was under construction, and withheld part of the purchase money at the time he took a deed to the property and knew of the unpaid bills, and the affidavit made by Anderson that there were no unpaid bills was for McCandless as a convenience to him.
The appellants were under the duty at the they purchased the property, the improvements on which were but newly constructed, to determine whether or not there were any outstanding materialman's or mechanic's liens against the property.
In Tomlinson v. Higginbotham Brothers & Co., Tex.Civ.App., 229 S.W.2d 920, 921, the Court held: "* * * The Statutes and constitution gives to all persons who furnish material and labor in the construction of a building a lien upon the lands and the buildings to secure payment therefore. Tomlinson was charged with notice of such liens. This is true even thought plaintiffs at that time had not attempted to fix their liens by filing affidavits in the office of the County Clerk as required by the Statute. Vernon's Ann.Civ.St. art. 5452 et seq. The law is well settled that while a building is under construction, any person who takes a mortgage thereon does so with notice of any mechanics' or materialman's liens. It is his duty to make inquiry as to whether or not labor has been performed or material furnished within the statutory period for filing liens for which payment has not been made. Tomlinson made no such investigation. He apparently relied solely on the affidavit made by one of the Fields. He made no material and labor on the house. He did not talk to the man who was working on the house at the time he inspected it. `In law whatever fairly puts a person on inquiry is sufficient notice, where the means of knowledge are at hand, which if pursued the proper inquiry the full truth might have been ascertained. Means of knowledge with the duty of using them are in equity equivalent to knowledge itself.'"
There is no testimony as to what Mr. Marks did, if anything, in ascertaining the facts in connection with outstanding claims as was his duty, since he was changed with the knowledge that someone had furnished the materials for the house. Denny v. whitehouse Lumber Co., Tex.Com.App., 54 S.W.2d 86.
The judgment of the trial court is affirmed.
Affirmed.
