Opinion
No. B — 966.
October 2, 1968.
Appeal from the District Court, Harris County, D. B. Wood, J.
Carl, Lee Fisher, Houston, for petitioner.
Diamond Torz, S. Mitchell Glassman, Houston, for respondent.
Suit was brought by Trane Company against Stresdek Building, Inc. for debt and against Miles Wortham to foreclose a mechanic's and materialman's lien which the Trane Company claimed as the assignee of the debt of the materialman. The materialman did not fix and secure the lien until after he had assigned the debt to Trane. This case presents the question whether the assignor-materialman can file in his own name the affidavit required by Article 5452, Vernon's Texas Civil Statutes, after he has assigned the debt and whether the lien will inure to the benefit of the assignee.
The trial court entered summary judgment that the plaintiff take nothing on the lien phase of the case. The court of civil appeals reversed and remanded, holding that the assignor may have been acting as agent for the assignee when he filed the affidavit. 428 S.W.2d 417. We hold that one furnishing labor and materials may perfect a mechanic's and materialman's lien after assignment of his debt and that the lien will inure to the benefit of the assignee regardless of whether the assignor was acting as agent of the assignee.
The application for writ of error is refused, no reversible error. Rule 483, Texas Rules of Civil Procedure.