Booth v. Uvalde Rock Asphalt Co.

Decision Date18 May 1927
Docket Number(No. 7778.)<SMALL><SUP>*</SUP></SMALL>
Citation296 S.W. 345
PartiesBOOTH et al. v. UVALDE ROCK ASPHALT CO.
CourtTexas Court of Appeals

Appeal from District Court, Bexar County; Robt. W. B. Terrell, Judge.

Suit by the Uvalde Rock Asphalt Company against Frank H. Booth and wife, in which Raymond Edwards and wife were impleaded by plaintiff and in which defendants filed cross-actions. From a judgment denying defendants part of relief claimed in cross-actions, they appeal. Affirmed.

Frank H. Booth, of San Antonio, for appellants.

Kampmann & Burney, of San Antonio, for appellee.

SMITH, J.

This suit was brought in the court below by the Uvalde Rock Asphalt Company, appellee herein, against Frank H. Booth and wife, to recover the amount of a paving certificate issued to appellee by the city of San Antonio in pursuance of a special assessment made by the city to cover the cost of street improvements in front of property then belonging to the Booths. After the suit was filed, Raymond Edwards and wife purchased the Booth property, whereupon they were impleaded in the suit by appellee. Booth and Edwards filed cross-actions, in which they set up that the assessment proceedings upon which the paving certificate was based were void and created no liability against the property owners. Edwards also claimed exemption from liability on the ground that he was an innocent purchaser of the property. Both defendants prayed for removal of the cloud cast upon their title by reason of the alleged void assessment proceedings, and for an injunction to restrain the city from reassessing the property, and from issuing any certificate upon the reassessment, and restraining the paving company from accepting or enforcing such certificate. The trial court sustained exceptions to the paving company's pleadings, and, in consequence of a refusal to amend, dismissed that company's suit. The court also rendered judgment removing cloud from title, but denied the defendants' prayer for injunction. Appellee prosecuted no appeal from the judgment dismissing its suit, nor from the judgment removing cloud, but Booth and Edwards have appealed from the order denying the injunction.

Appellee filed and has urged in this court a number of cross-assignments of error, but as it filed no appeal bond and has therefore prosecuted no appeal to this court, its cross-assignments cannot be considered except as they may bear upon the matters presented in the appeal from the order denying injunctive relief to appellants Booth and Edwards.

The controlling contention presented by appellants is that the statutes authorizing municipal corporations to reassess property, where prior assessments are found to be invalid, is void. Those statutes, now embraced in articles 1095 and 1097, R. S. 1925, are as follows:

"Art. 1095 (1014) Reassessment. — The governing body of any city shall be empowered to correct any mistake or irregularity in any proceedings with reference to such improvement, or the assessment of the cost thereof against abutting property and its owners, and in case of any error or invalidity, to reassess against any abutting property and its owner the cost or part of the cost of improvements, subject to the terms hereof, not in excess of the benefits in enhanced value of such property from such improvement, and to make reasonable rules and regulations for a notice to and hearing of property owners before such reassessment."

"Art. 1097. Special Reassessment. — In any case in which the public funds of a city or town may have been or may hereafter be expended, or its vouchers or certificates issued to any contractor, or any contract made therewith, for the special improvement, raising or lowering the grade of, opening, straightening, widening, paving, constructing or grading of any street, avenue, alley, sidewalk, gutter or public way, or any part thereof, and if for any reason, no part of the cost of such improvement has been borne by the abutting property or paid by the owner or owners thereof, either because an attempted assessment and enforcement thereof for the same was erroneous or void, or was so declared in any judicial proceeding, the governing body shall have the power to proceed at any time to specially assess or reassess, such abutting property with such amount of the cost of such improvement as it deems proper, but in no event shall the amount exceed the special benefits such property receives therefrom by enhanced value thereto, the amount of such special benefits to be determined on a basis of the condition of such improvement as it exists at the time of such assessment or reassessment."

In their first proposition appellants attack the trial court's conclusion of law that Edwards was not an innocent purchaser, for value, of the Booth property. There is no merit in this contention. The undisputed evidence conclusively shows that Edwards purchased the property with full notice, both actual and constructive, of the nature and extent of appellee's claim against Booth and the property. At that time the improvement had been made and completed by appellee, and Edwards knew it; the assessment certificate had been issued and delivered by the city to appellee, and, together with certified copy of the assessment ordinance, had been duly recorded in the appropriate county records; this suit had been instituted against Booth to recover, upon the certificate, the amount of the assessment and to foreclose the lien therefor against the property, and lis pendens notice of this suit had been duly filed and recorded in the appropriate county records; Edwards had examined an abstract of title of the...

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14 cases
  • City of Lexington v. Wilson's Estate
    • United States
    • Mississippi Supreme Court
    • November 20, 1933
    ... ... Co., 26 S.W.2d 387; Lord v. City of Salem, 282 ... F. 721; Booth v. Uvalde Rock Asphalt Co., 296 S.W ... 345; Anderson v. Ocala, 91 ... ...
  • Clark v. W. L. Pearson & Co.
    • United States
    • Texas Supreme Court
    • April 15, 1931
    ...the property as was done. This act did not violate any of the provisions of the federal or state Constitutions. Booth v. Asphalt Company (Tex. Civ. App.) 296 S. W. 345 (Writ refused); City of Dallas v. Atkins, 110 Tex. 627, 223 S. W. 170; Childress v. Carwile (Tex. Com. App.) 235 S. W. 543;......
  • City of Beckley v. Hatcher, CC782
    • United States
    • West Virginia Supreme Court
    • October 16, 1951
    ...of Kelleher, 195 U.S. 351, 25 S.Ct. 44, 49 L.Ed. 232; Lord v. City of Salem, D.C. 282 F. 720. In the case of Booth v. Uvalde Rock Asphalt Co., Tex.Civ.App., 296 S.W. 345, a statute authorizing reassessment of property for improvements, where conditions similar to those in this case existed,......
  • Murphy v. Montgomery County
    • United States
    • Maryland Court of Appeals
    • December 5, 1972
    ...have been charged with notice in any event. See Columbia Hills v. Mercantile, 231 Md. 379, 190 A.2d 635 (1963); Booth v. Uvadle Rock Asphalt Co., 296 S.W. 345 (Tex.Civ.App.1927). As we have noted, the Murphys, on October 18, 1968, requested and instructed the County to install aprons and dr......
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