91 S.W.2d 321 | Tex. | 1936
Plaintiff in error, Uvalde Rock Asphalt Company, herein referred to as plaintiff, brought this suit in the District Court of Harris County against defendants in error, May E. Warren and her husband, John K. Warren, herein referred to as defendants. Plaintiff sought to recover upon a paving certificate issued by the City of Houston, June 25, 1930, in the sum of $585.00 with foreclosure of a statutory assessment lien. It also sought foreclosure of a contract lien of date October 28, 1929, which it alleged had been executed by Mrs. Warren, joined by her husband. It further sought recovery of a personal judgment against Mrs. Warren. The case was tried before the court without a jury, resulting in a general judgment against plaintiff. No finding of fact were requested and none were filed. The judgment of the district court was affirmed by the Court of Civil Appeals.
On January 28, 1922, defendant, Mrs. May E. Warren, acquired as her separate property a lot of land in the City of Houston facing 65 feet on Fannin Street and running back a distance of 125 feet. This consisted of all of lot 8 of a certain block, the adjoining 15 feet by 100 feet of Lot 7, and the adjoining 25 feet by 65 feet of Lot 9. Lot 8 is a corner lot fronting 50 feet on Fannin Street and running back 100 feet with Arbor Place, which is an avenue 25 feet in width. For convenience, we refer to Fannin Street as running north and south and Arbor Place as running east and west. Lot 9 adjoined Lots 7 and 8 on the east, fronting Arbor Place and running back south a distance of 100 feet. While in the deed to Mrs. Warren the different lots, are referred to and the portion of each included is mentioned, yet manifestly the land purchased was regarded as only one tract, having a frontage of 65 feet on Fannin Street and running back a distance of 125 feet.
At the time of the acquisition of this property there was a residence situated near Fannin Street, being located mostly on Lot 8, but extending over onto Lot 7. Defendants moved into the house immediately after the purchase, and it is admitted by all parties that the whole tract of 65 feet by 125 feet constituted their homestead until the year 1925. During the year 1925 defendants erected a two-story frame apartment house on the eastern portion of the tract, facing the same on Arbor Place, which house was intended for rental to tenants. It consists of two apartments, and since its construction each of these apartments has been rented to tenants most of the time. The entrances to this house are on Arbor Place and it is numbered in accordance with the houses on that avenue. The entrance to the homestead residence is on Fannin Street and it is numbered according to the houses on that street. Between the family residence and the apartment house there is a concrete driveway about 7 feet in width, which is used by defendants. There is a concrete driveway immediately east of the apartment house which is used by tenants of that house.
Farm and Home Savings Loan Association was made a party defendant. It held a deed of trust lien on the entire tract. This deed of trust lien was given in extension of a vendor's lien executed by Mrs. Warren at the time of the purchase of the property, and in extension of a mechanic's lien executed at the time of the construction of the apartment house. Apparently this mechanic's lien covered only the apartment house and the portion of land where the same is located. The following rough plat, which in all of its material parts is reproduced *140 from one in the statement of facts, shows the condition of the property as it was after the construction of the apartment house and as it existed when the assessment was laid:
[EDITORS' NOTE: SKETCH IS ELECTRONICALLY NON-TRANSFERRABLE.]
Dotted lines indicate lines of Lots 7, 8 and 9 as originally platted.
1 As stated above, all parties admit that the original tract was the homestead of defendants until 1925. Plaintiff contends that it has a valid assessment lien on the eastern portion of the tract covered by the apartment house and the land necessary for the proper use and enjoyment of said house, not actually used in connection with the homestead portion of the original tract. It rests this contention upon the claim that the dedication of this part of the property to a purpose inconsistent with the homestead claim and the appropriation of it to rental *141
purposes constitutes a segregation of that portion of the land from the original tract and an abandonment of it for homestead purposes. It relies upon such cases as Atwood v. Guaranty Construction Co. (Com. App.),
Under the charter of the City of Houston by virtue of which the improvement was made the cost of making street improvements could be assessed only against property abutting on the street improved and its owner or owners. As originally platted, Lot 9 did not abut on Fannin Street, but abutted only on Arbor Place Avenue. Plaintiff's attorneys cite us to a number of cases holding that where several lots or parts of lots are purchased as one tract and are used as a single tract in disregard of the lot lines as platted, they are to be regarded as a unit and may be assessed as such, even though only one of the lots actually abuts on the street improved. This contention appears to be supported by the great weight of authority. Pursiful v. City of Harlan,
2 It is admitted that a lien could not be created by assessment against the homestead, and as the remaining portion of the tract was not abutting property the assessment as to it was invalid.
Plaintiff is not entitled to a lien by virtue of the contract *143 of October 28, 1929. There was ample proof to sustain a finding of the trial court that Mrs. Warren did not acknowledge this instrument at all. She in effect denied having ever seen the party who purported to take the acknowledgment before the date of trial of the case, and had no recollection of ever having acknowledged the instrument before anyone. She stated positively that no notary ever explained to her the nature of the instrument. The pleadings of defendants, under the circumstances, raised this issue. This makes it unnecessary for us to consider the question of the disqualification of the notary.
Plaintiff, however, contends that in all events it is entitled to a personal judgment against Mrs. Warren, relying upon the case of Spears v. City of San Antonio,
"The portion of the cost of an improvement determined by the Council to be payable by the owners of property abutting thereon, shall be apportioned between them in accordance with the front foot plan or rule, in proportion as the frontage of each owner is to the whole frontage to be improved; provided, that if in individual cases the Council shall determine that the strict application of this rule would result in injustice or inequality, then the said Council shall adopt such rule of apportionment as will produce substantial equality among said owners, considering burdens imposed upon and benefits received by them."
3 As the assessment was laid against the entire tract, when it should not have included the eastern portion, it cannot be said that the Council would have made a similar assessment if only the homestead portion of the tract had been considered. There being no way of equitably proportioning the amount of *144
the assessment, it must all be held invalid so far as creating a personal liability against Mrs. Warren is concerned. Cox v. Thurber Brick Co.,
The judgment of the Court of Civil Appeals is affirmed.
Opinion adopted by the Supreme Court March 4, 1936.
Rehearing overruled April 1, 1936.