*1 «27 n sedation against held a lien also 'land, appellee’s inferior to lien reason above, and the transfer referred to appellee right given had the contractual in Harris the Association to sue it County Having lien. foreclose that against venue one of the defendants n forecloseits County, ap- lien in Harris pellee County had venue in Harris parties lien against foreclose its all as- land, serting an adverse interest say, .appellants necessary parties -appellee’s suit to its foreclose the Association.
Affirmed.
FORMAN al. v. BARRON et al. et
No. 3689. Appeals
Court Civil Texas. El Paso.
June
Rehearing Sept. Denied *2 trespass
sued M.
in
C. Ulmer and others
try
.is-
to
involved
title. The
Lot No.
described as
north
of
half
38, Original
in
of Mid
Block No.
Town
land,
per
map
rec
as
of said town of
in
Deed'
pages
ord Book
233 of the
County. September
Records of Midland
17, 1937, plaintiffs filed
amend
their first
original petition
parties de
naming
ed
as
Baptist
fendant
Christ
the First
Church of
Midland,-
Elliott, H.
corporation,
in
Mims,
Percy
said"
Barron and
trustees of
usu
allegations
church. The
were those
ally
trespass
try
made in
in
title.
suits
pleaded
guilty, general
Defendants
two,
years
denial
three
four
statutes of
Ann.Civ.
limitation. Vernon’s
5507, 5526,
arts.
They
St.
also al-
improve-
leged
they
had made certain
faith,
good
alleging
ments in
certain facts
upon
good
which
based their claim of
By
faith.
in
second count
cross-action
trespass
allegations
made
usual
try
recovery
sought
title
actions
possession
premises.
par-
All
defendant, except
ties
those
in the
named
petition, were
amended
dismissed from
plaintiffs.
suit
motion of
tried,
was
without the
case
court
jury
of a
judgment
aid
plaintiffs
rendered that
-
suit,
nothing
take
by their
that" defendants
for
recover
possession
property.
title
From
plaintiffs
appeal.
Scharbauer,
was
Clarence
agreed
individually
will of
executor of the
Scharbauer, deceased, was the
Christian
(cid:127)
title;
rental
common source of
improvements
equal
about
value was
waived,
Plaintiffs
made
the defendants.
and defendants
any right
claim rents
any right
assert their claim
waived
faith, insofar
good
improvements made
particular
trial was concerned.
as
facts
Feb-
we now relate.
"of the case
1, 1927,
ruary
con-
Scharbauer
Clarence
Tucker, broth-
veyed
property to
S.
C.
Forman,
plaintiff
for-
Mrs. Carrie
er
$1,000
$7,000,
which
a consideration
was
which
the balance of
paid in cash and
promissory notes
by six'
evidenced
Waco,
Hale,
appel-
Joseph W.
deed,
with
each
date
even
lants.
$1,000.
The notes
principal sum of
Turpin
Joseph
Whitaker,
&
Perkins
three, four,
one, two,
due, respectively, in
Midland,
Mims,
appellees.
all of
H.
date. An
years
their
and six
after
five
se-
lien-
retained to
express vendor’s
NEALON, Chief
February
notes.
Justice.
cure
Forman,
assigned
joined
the notes
L.
her
Scharbauer
Carrie
recourse, “together
7, 1937,
Forman,
with all
husband,
May
and.
Frank
without
lien,
$75.attorney’s fees,
interest and
made
lien, vendor’s
contract
singular
appellants parties
said
said
suit.
titles
equities,
rights,
plea
filed
privilege
being
to be sued in Mc-
by virtue
he had
land”
County.
one Lennan
An answer was filed on
notes,
Frank
said
owner
*3
filed behalf of Tucker and
was
which included
wife
assignment
appellants.
of
30, a general
February 7,
denial and
the
allegations that
1927.
for record
June
prop- property was
conveyed
subject
the
homestead and
wife
not
and
Tucker
1931
sale,
The forced
attacking
and
proceedings
Forman.
the
L.
erty
appellant Carrie
by
Ten
of
virtue of which
Realty
“the sum
the
Com-
was
Trust
consideration
recited
Dollars
pany
Forman
L.
claimed
paid by
They
a lien.
Carrie
also attacked
to us
upon
follows:
ground
the contract
considerations
the
that
further
grant
.accept
85 Tex.
(cid:127)one. Where
superior
.allegations or
demption,
on either side
n and 'to
.and in this
.seek this
n duty of the court
title
pleadings were
«01; sumption employed necessary counsel appellants. judg- She to sustain both be of ment. filed in behalf Mr. caused answer to be Tucker testified he an “took possession” complete control of property just Tucker. took She after title- were appellants deed and made;, In fact Tucker’s defense. transfer notes by benefited only floor, who could be that he rented ones the lower “used”' Realty upper Trust floor defeating rooming the claim “as a hotel” house.. They owned the He did Company say suit. “calling” not what his or “busi- well redemption,” as ness” “equity of was or so-called that he had an office on the- upper v. Fort lien. Bomar family there,, vendor’s floor or that his lived Ass’n, Tex.Civ.App. Bldg. 20 unless Worth this last be nega- inferred from a Morris, 914; 43 Tex. reply 49 Elliott v. tive question, S.W. “You never did' 220; Marshall v. Civ.App. 98 S.W. live on property you this awaj’’ after went 435; Stubbs, Tex.Civ.App. 106 you?” 48 S.W. testify did He did not that he was- Heidenbeimer, Tex.Civ.App., living upon Cleveland v. question the- at 551; Green, 6 Tex.Civ. Bonner v. special S.W. time the assessment lien was fixed' S.W. ordinance or at the time the contract lien was executed. The court did err of said vendor’s last recovery denying of the- account matured originally given Tucker *5 alleged invalidity of the paving liens. years prior filing of more than four We are convinced original that our hold- pleaded four this Defendants action. ing was correct. motion for rehear- .limitation, year Ann. statute of Vernon’s ing is overruled. plea have That should Civ.St. art. 5520. appellants’ been and now is sustained as to attempt virtue of the su to recover perior title retained Scharbauer’s deed. part consideration of the deed from appellant Tucker to Clara proceedings and obviated the foreclosure consequent expense, was received for community appellants’ es the benefit of tate, grantee “legal all therein assumed HANKS ux. v. TEXAS et EMPLOYERS property. claims” The contract INS. ASS’N. claim, when paving,lien was a No. 3447. prior became the vendor’s lien. assumed to. recovery. Appeals This was sufficient defeat of Civil Court Texas. Beaumont. assumption may repudiated not be Oct. while benefit received is claimed. Rehearing Denied Nov. finding warranted a evidence purchased Ulmer without notice of Mr. the deed from Tucker Forman. plaintiff Mrs. Forman had written in ex- any disclaiming ecution property, except the vendor’s lien. presumed be that she not to would have contradictory made a statement had Mr. inquired directly of Ulmer her. insist theory assessment was invalid Tucker’s homestead at the assessment was levied City of Midland. We Council think this holdings in view immaterial of our as to effect of the Dallas and the assumption clause in the deed from Tucker However, Forman. we think to Mrs. appellant’s evidence in favor homestead sufficiently theory strong was not over presumption, favor of come court’s judgment, indulging pre- if such notes being Tucker, Tucker, certain notes Mrs. Callie wife payment five of C. S. of 6, executed 4, series 2, 3, signed up- 5 of a had it. From not No. the eviáence Scharbauer on Tucker to Clarence of by appears the trial this case that C. S. it February, for the day of 1927 1st the Tucker and wife did on not know that Dollars filed; Thousand ($1,000.00) One by sum of it answer was that filed Mrs. was part payment for each, given Forman; attorney preparing that retaining ven- conveyed, property her, herein employed by was and that filing it 4, 2, 3, 5 and on same and due dor’s lien part employment upon his such action being date, years notes now from said 6 by appellant For- were authorized Frank Forman, and by Frank and held owned judgment The court entered man. of the further consideration interest, the of all taxes principal, attorney’s fees and against and other claims and decreed a foreclosure of both costs not considerations property, and other said Subsequently property was sold liens. filed mentioned.” This was herein deed by County by of Midland virtue sheriff 4,May record sale issued in the case of order of by M. C. for the purchased Ulmer was 1927, Midland, 16, May City of On that at Mr. Ulmer testified sum of $200. ordinance, by a special levied assessment purchased of he did not know he property against the sum of $258.90 Mrs. deed from Tucker to unrecorded the Forman; defray portion of paving the cost a of purchase making his but after upon which property the street abut- selling the church he offer- before special A certificate of ted. assessment prop- ed Forman his interest in the was issued to Womack Com- Construction invested; he had amount erty for the contractors, pany, the “All reciting that Subsequent- accept the offer. she did proceedings with making reference such 1934, conveyed 20, ly, September Ulmer improvements regularly have been had in First trustees of the to the property compliance law, with the the Charter of Midland for a recited of Baptist Church City said and the terms of this certificate The real consider- of consideration $165. prerequisites and that all fixing of $200, but a of credit $35 ation lien- premises the assessment on said account rents that allowed on personal liability claim of by evidenced paid. had church performed; have this certificate been improvement completed by said has been Opinion. Company in compliance said with the contract, terms of said accepted and was contend the title by City day said on the August, 24th ven possessed virtue 1927,”and contained conveyance by all other recitals nec- Tucker and the dor’s lien essary to make the prima superior acquired certificate facie to the title is and wife evidence of truth July proceedings its contents. at foreclosure of the virtue 7, 1927, therefore, Tucker and that, wife executed a me- are en Dallas, and chanic’s lien protect contract to same al suit at Dallas recover. titled to debt. These liens assigned adopted Real- City of Midland had leged the ty Company, Trust corporation, Chapter a domicil- 14 of the Gen provisions ed at Dallas. Tucker paid passed all of the in- State the Sec of the at eral Laws stallments contracted except Thirty-first Leg the last ond Session Called 11, 12, which July 1932, islature, formerly Chapter amounted to shown as $51.87. Realty Trust Company brought suit Revised Statutes Title County against inclusive, Dallas Tucker and wife now as 1086 to both shown for a balance of principal, Revised $51.87 Articles 1104 and 1105 of the $14.02 830 ticle levying pro struction property of sentials the certificate Street Civil Statutes special assessment 1925; was, rata that the therefore, part Company and Revised C. of the State City S. Tucker. prima Civil Statutes said said issued the Womack complied with its facie evidence property as 'the portion assigns for a certificate all its es Texas of of 1925. abutted, Main insufficient evidence. York v. Con Ar v. Jennings Tex. thias, Lumber sufficient dered to a Thompson, Tex.Civ.App., Upon Tex.Civ.App., upon Co., pleadings v. Texas Farm insufficient the state of the can Tex.Civ.App., S.W.2d as a want of no more be 931; support pleadings S.W.2d Mortg. McKee v. Ma- 169 S.W. pleadings the evidence, properly it 72 S.W.2d 744; Thompson than Co., as fatal Moss upon 187; ren- 124
Notes
notes