Smith Bros., Inc. v. Lucas , 15 S.W.2d 27 ( 1928 )

^* Writ of error granted. In a suit in a district court of Dallas county by Smith Bros., Inc., appellant, against appellees, W. J. Lucas and others, to recover a personal judgment against Lucas and the foreclosure of a lien for pavement on certain described property against Lucas and the other appellees, judgment was entered in favor of all of appellees, and an appeal has been duly prosecuted to this court. The facts necessary for a disposition of the questions raised on this appeal are:

On February 23, 1924, the governing body of the city of Dallas duly passed a resolution ordering the pavement of a portion of Seventh street, under plans and specifications duly prepared and filed by its engineer. Appellant was awarded the contract for such pavement, the cost of which was to be assessed against the property abutting on paved portion of such street and against the owners of such property, except the city was to pay the cost of paving on all street intersections. All the preliminary steps, required by the Dallas City Charter to be taken, in order to fix a personal liability for such costs on the respective owners of said property and to fix a lien on the property, were duly performed by the governing body of the city of Dallas and appellant duly executed its contract of paving. One of these preliminary steps was the adoption of an ordinance by the governing body of the city of Dallas, on September 21, 1925, fixing the amount of the cost of paving to be assessed against each abutting property owner, declaring his personal liability therefor, and declaring a lien against his said property for the cost so assessed against him. This ordinance fixed the amount assessed against Lucas for the cost of this street improvement of $578.72, declared his personal liability for such sum, and declared a lien on his abutting property for the payment thereof; also on September 21, 1925, the paving certificate, authorized by the city charter and ordinance, was duly issued to appellant. This certificate was in due form and is clothed with the legal effect the city charter gives to such certificates.

This city ordinance described the property of Lucas as located on Seventh and Denver streets, in city block 74/3055, and abutting on Seventh street 97.5 feet. The recorded plat of the Oak Cliff addition to the city of Dallas, in which addition this property is located, designates this said lot as lot No. 8 of said block, and gives its dimensions as 100 feet frontage on Seventh street and a depth of 150 feet, making 150 feet frontage on Denver street. Some years prior to the passage of the original resolution declaring the pavement of Seventh street, a strip fronting 2 1/2 feet on Seventh street and off of the east side of this lot was sold to the owner of the adjoining lot. In 1922, the owner of lot No. 8 subdivided it into three lots, each fronting 50 feet on Denver street and extending back 97 1/2 feet, and these subdivision lots will be referred to as the north lot, the middle lot, and the south lot. The north lot is the only one that abuts on Seventh street. On April 8, 1928, Mrs. Mae E. Milks, a feme sole, acquired by purchase from the then owner, the north and the south lots; the owner executing to her separate deeds for each lot. On April 6, 1922, she also acquired from the same owner the middle lot. Each of the three deeds of conveyance described the lot conveyed as being a part of original lot No. 8 and as having a frontage of 50 feet on Denver street, and each was filed for record in the Dallas county deed records and duly recorded.

On May 22, 1922, appellee Lucas purchased from Mrs. Mae E. Milks both the north and middle lots, receiving a separate deed of conveyance for each lot, and duly placed the deeds of record in Dallas county. On October 7, 1922, Mrs. Mae E. Milks repurchased from appellee Lucas the north lot and duly placed this deed of record. On November 28, 1922, appellee Lucas and Mrs. Mae E. Milks were legally married. After the marriage they first lived in the house on the said middle lot, but on the last of November, 1922, they established their homestead on the north lot, the one that has a side frontage of 97 1/2 feet on Seventh street, and lived on this property as their homestead until the 20th day of February, 1925, when they were legally divorced. At the time of the marriage, Mrs. Mae E. Milks had three minor children by a former marriage, who lived with their mother and constituted a part of the family residing on this north lot. Lucas had no children, and none were born of this marriage. On February 23, 1924, the date of the passage of the original resolution, this lot was the separate property of the wife of appellee Lucas and was the homestead of the family. On January 27, 1924, by instrument of writing duly executed by them and filed for record on said date, Lucas and wife designated this north lot as their homestead.

In the judgment awarding a divorce, the court approved an agreement between the parties for division of property, and this agreement recites the separate ownership of the wife of this north lot. Likewise it recites the separate ownership of the husband in the middle lot. Ownership of the south lot had heretofore been transferred. On February 21, 1925, the day following the divorce, appellee Lucas purchased from his divorced wife the north lot, and a few weeks later moved into same, where he has continually resided since said time. A portion of this time, if not all of it, the record not being clear, the minor children of the divorced wife resided with him, and on the 8th day of September, 1927, he legally adopted these children.

Before the passage of the said ordinance, appellee Lucas, in response to notice legally given, appeared before the governing body of the city of Dallas and protested the paving charge assessed against the lot abutting 97 1/2 feet on Seventh street. Appellant, in its petition in this case, does not take cognizance of the subdivisions of lot No. 8, but alleged the existence of a lien against that portion of lot No. 8 that fronts 97 1/2 feet on Seventh street and extends back 100 feet, omitting in this description the south lot. The parties defendants in this suit, other than Lucas, include the record owner of the middle lot and those who own pre-existing liens against the north and middle lots.

Section 1 of article X of the charter of the city of Dallas provides for street improvements. In subdivision (h) of said section 1, the various steps for fixing a lien on abutting property and a personal obligation on the owner of such property for paving a street are given, and each step therein required was taken in the instant case. The last step provided for in subdivision (h) is the hearing of protest by interested parties on notice issued to them. Then follows subdivision (i), which, in so far as it bears on the issues of this case, reads as follows:

"When the hearing above mentioned has been concluded, the board of commissioners shall, by ordinance, assess against the several owners of property and against their property abutting upon the public highway or highways, or part thereof, ordered to be improved, such proportionate part of the costs of such improvements as by said board may have been adjudged against said respective owners and their property. Said ordinance shall fix a lien upon such property and declare the respective owners thereof to be personally liable for the respective amounts to be assessed. * * * The cost of any such improvement assessed against any property or owner thereof, together with all costs and reasonable expense in collecting the same, including reasonable attorney's fees when incurred, shall constitute a personal claim against such property owner, and shall be secured by a lien on such property superior to all other liens, claims or titles, except city, county and state taxes, and such personal liability and lien may be enforced either by suit in any court of competent jurisdiction, or by sale in the same manner, as far as applicable, as sales are authorized to be made by the city of Dallas for the nonpayment of taxes. * * * In any suit brought under the provisions of this section, it shall be proper to join as defendants two or more property owners who are interested in any single improvement or any single contract for such improvement; the person or persons who own property at the date of any ordinance providing for the assessment thereof, shall be severally and personally liable for their respective portions of the said assessment. The lien of such assessments shall revert back and take effect as of the date of the original resolution ordering the improvement, and the passage of such resolution shall operate as notice of such lien to all persons. * * *"

Subdivision (k) provides, in effect, that the paving contractor is not required to pave in front of property exempt from special assessments.

By proper pleading appellant sought recovery of a personal judgment against appellee Lucas for the amount of the paving certificate, which included the cost of the paving and charged 7 per cent. interest thereon from September 21, 1925, and a reasonable attorney fee. It also sought a foreclosure of the lien alleged to have been fixed against Lucas' property as to the appellees. This lien was alleged to exist against the north and middle lots of the subdivision of the original lot No. 8. The defensive pleading raised the defensive issues herein discussed.

By appropriate assignments of error, appellant challenges the judgment of the court in denying to it a personal judgment against Lucas and a foreclosure of its alleged lien against Lucas and the other appellees. The assignments of error will not be separately discussed.

At the time of the passage of the original resolution, original lot No. 8 in this addition to the city of Dallas had been subdivided into three lots, and only one of them, the north subdivision lot, abutted on Seventh street. Under the terms of the city charter, only the property abutting on a street to be improved can be charged with a lien for the improvement, and only the owner of property that abuts on the street can he charged with personal liability. The middle and south subdivision lots did not abut on Seventh street, were separately owned at this time and this ownership evidenced by separate deeds, each giving the metes and bounds of the lots conveyed. We therefore hold in no event could this middle lot be charged with the alleged lien.

At the time of the passage of the original resolution, February 23, 1924, this north lot was owned by Mrs. Lucas as her separate property and was the homestead of the family. At the time of the passage of the ordinance on September 21, 1925, this lot was owned by appellee Lucas, who, by virtue of the decree of divorce, had the legal status of a single man and was not entitled to claim a homestead exemption in this property. Bahn v. Starcke, 89 Tex. 203, 34 S.W. 103, 59 Am. St. Rep. 40; Sykes v. Speer (Tex.Civ.App.) 112 S.W. 425. It is therefore apparent that at the date of the passage of the original resolution no lien could be fixed upon this lot because of its use as a homestead, but because of the changed conditions as to homestead rights at the date of the passage of the ordinance there was no exemption to forbid the fixing of a lien. It is certain that, at the date of the passage of the original resolution, no personal liability for the cost of this paving could be fixed against Lucas, for on that date he was not the owner of this lot. However, on the date of the passage of the ordinance, he had become the owner of the lot in question and subject to personal liability for street improvement in front of such lot. Manifestly, then, the first matter for determination is: When did the lien become effective, and when did the personal liability of the owner of abutting property become effective? This must be answered from a construction of the above-quoted provisions of the city charter, which authorize both the creation of the lien and the personal liability.

If the provisions of the city charter, creating a lien for street improvements, do not specifically name the time the lien is to become effective, it has been held that in such case the law implies the effectiveness of the lien on the date of the passage of a city ordinance, which declares the specific amount assessed against each piece of abutting property, and which fixes the personal liability of the owner of the property. Johnson v. City of Fort Worth (Tex.Com.App.) 299 S.W. 883. If, however, the city charter does specifically designate the time the lien created shall become effective, then such designated time must be taken as the time on which the lien becomes effective.

The city charter of the city of Dallas specifically declares that "the lien of such assessments shall revert back and take effect as of the date of the original resolution ordering the improvement, and the passage of such resolution shall operate as notice of such lien to all persons." This language of the charter is plain and unmistakable. The law wrote it into the city ordinance declaring the lien, and thereby caused the lien to take effect against the abutting property of date February 23, 1924, the date of the passage of the original resolution. The naming of such date for the effectiveness of the lien created is based on the exercise of sound discretion. The condition of the abutting property on any street in reference to exemption from liens necessarily constitutes an important element for consideration by the governing body of a city, in determining whether a street shall be paved. The amount of homestead property abutting on said street, against which no lien can be created, must be considered before the passage of the resolution declaring the paving of a street. If this condition is such that is favorable for street improvement at the time of the passage of the resolution, the status of the property in this respect might be radically changed before the passage of the ordinance declaring the lien, and so, in order to maintain the same status of the property in reference to exemption, the city of Dallas has provided in its charter that the lien created shall be of the date of the passage of the original resolution.

It seems clear to us that if, at the date the lien is to become effective, the property sought to be charged is not subject to the lien because of the homestead exemption, then no lien is created, and none can thereafter come into existence. Willis v. Mike, 76 Tex. 82, 13 S.W. 58; Mayers v. Paxton, 78 Tex. 199, 14 S.W. 568; Inge v. Cain, 65 Tex. 75; Hays v. Hays, 66 Tex. 606, 1 S.W. 894; Marks v. Bell,10 Tex. Civ. App. 587, 31 S.W. 699.

Under the principles announced by the above authorities, which refer to attachment and contract liens, and hold that, if at the date the attachment was levied, or at the date the lien was attempted to be fixed by contract, the property sought to be subjected to the lien was exempt therefrom because it was a homestead, the subsequent abandonment of the homestead does not render the lien effective, even though such abandonment occurred before the trial of the case to foreclose the alleged lien. We do not believe the language of the city charter of Dallas, authorizing the creation of a lien for street improvement, is susceptible of the construction that the passage of the city ordinance, declaring a lien against abutting property owners, effective of the prior date of the passage of the original resolution, becomes a continual threat against such property, capable of being brought into existence on any future date that a change in the status of the property would render it subject to a lien. We hold that, as the property was exempt on the date designated for the lien to become effective, no lien was created, and, there being no lien created, there was nothing that could subsequently bring a lien into existence, even though the exemption status of the property ceased.

The charter of the city of Dallas has just as definitely fixed the date when the personal liability of the owner of abutting property shall become effective. The charter declares that "the person or persons who own property on the date of any ordinance providing for the assessment thereof shall be severally and personally liable for their respective portions of said assessments." On the date thus declared appellee Lucas was the owner of this property, and under the above-quoted provision a personal liability against him for the cost of the pavement in front of his property was fixed. We therefore hold that the court erred in not entering a personal judgment against Lucas for the cost of the pavement, together with 7 per cent. interest from September 21, 1925, and for the additional sum of $150 as attorney fee, the amount agreed upon between the parties as reasonable.

This disposition of the case renders it unnecessary to discuss specifically the assignments of error against the prior lienholders, and against the owner of the middle lot, who are the other appellees in this case. It follows that the judgment, in so far as it denies a foreclosure of the alleged lien and in so far as it is in favor of the appellees, other than W. J. Lucas, must be affirmed, but that the portion of the judgment, denying appellant a personal judgment against W. J. Lucas, must be reversed, and here rendered in favor of appellant for the sum of $578.72, with interest at the rate of 7 per cent. per annum from September 21, 1925, and for the additional sum of $150 as attorney fee, with interest on said sum at the rate of 6 per cent. per annum from September 24, 1925, the date of the judgment in the lower court.

Affirmed in part; reversed and rendered in part.