delivered the opinion of the court.
This suit involves the validity of a paving lien on certain real property in the City of Dallas, Dallas county, Texas. Thе pertinent facts are undisputed, and are as follows:
On and prior to July 18, 1924, this property belonged to Davies Construction Company, a corporation, encumbered with a lien for $2,000, held by Lingo Lumber Company, also а corporation. On January 6, 1925, Davies Construction Company conveyed the property, to O. G. Claxton, who assumed the above mentioned $2,000 indebtedness and lien, and executed a further note for $1,550, payable tо Davies Construction Company. This latter note was secured by a vendor’s lien and deed of trust on the property in question. Later, on April 6, 1926, the Davies Construction Company again sold the property to J. C. McElyea, whо assumed the $2,000 note above mentioned, and executed a further note for $1,920, payable to Davies Cоnstruction Company. '
On July 18, 1924, while, as above shown, the property belonged to Davies Construction Company, thе City of Dallas, in due and regular form, and as provided for by its charter, passed a resolution ordering the streеt abutting on this property paved. Later, on June 24, 1925, the City of Dallas, in due and regular form, passed an ordinance levying an assessment of $292.42 against this property for paving said abutting street. This ordinance, by its terms, fixed a pаving lien on the property to secure this assessment, and, in conformity with the provisions of section 1, article 10, of the Dallas city charter, provided that the paving lien should revert back and take effect as оf date the original resolution ordering the improvement.
At the time the original resolution ordering the improvеment was passed, on July 18, 1924, as above shown, the property belonged to Davies Construction Company, аnd no homestead claim existed therein. As soon as O. G. Claxton pur
From the above it is seen that at thе time Claxton purchased the property, and at the time he used and occupied the same as his hоmestead, the resolution ordering the improvement had already been passed, but the ordinance assessing the benefits had not been passed.
With the record in the above condition, John R. Brandon et al., who became the owners of the paving certificate and lien, sued O. G. Claxton, Lingo Lumber Company, Davies Construсtion Company, G. C. McElyea, and one W. T. King. Brandon et al. prayed judgment against Claxton for debt, and further prayеd judgment against all defendants for a foreclosure of their alleged paving lien, and asserted superiority of such paving lien over the lien securing the $2,000 and $1,920 notes above described.
The defendants in the district, court answered and denied the superiority of the paving lien, and by cross action sought its cancellation. Trial in the district court resulted in a judgment for Brandon et al. against Claxton for the debt represented by the certifiсate, but they were denied any foreclosure on the property, and the alleged paving lien was hеld void and cancelled. On appeal to the Court of Civil Appeals at Dallas by writ of error that cоurt affirmed the personal judgment against Claxton, but reversed the balance of the judgment and rendered judgment for Brandon et al. decreeing the superiority of their paving lien over the other liens above mentioned.
Plaintiffs in error, by their application, present but one contention to this court, which is that the provisions оf section 1 of article -10 of the Dallas city charter, providing that the lien for street improvement assessments shall relate back and become effective as of date the original resolution ordering thе improvement, is unconstitutional and void. In this connection it is pointed out by plaintiffs in error that at the time the оrdinance assessing the benefits was passed, the property was being used and occupied by Claxton аs a homestead; but at the time the original resolution ordering the improvements was passed, no homestеad interest in the property existed. It is therefore evident that if the lien be fixed as of date the original rеsolu
In the case of M. E. Anderson et al. v. John R. Brandon et al., No. 5821 this day decided by the Supreme Court, post.,