Booth v. Uvalde Rock Asphalt Co.
Decision Date | 18 May 1927 |
Docket Number | (No. 7778.)<SMALL><SUP>*</SUP></SMALL> |
Citation | 296 S.W. 345 |
Parties | BOOTH et al. v. UVALDE ROCK ASPHALT CO. |
Court | Texas 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.
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:
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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