City of Lubbock v. Walsh

• Decision Date: 22 September 1958
• Docket Number: No. 6796,6796
• Citation: 316 S.W.2d 923
• Parties: CITY OF LUBBOCK, Appellant, v. J. W. WALSH et al., Appellees.
• Court: Texas Court of Appeals

Page 923

316 S.W.2d 923

CITY OF LUBBOCK, Appellant, v. J. W. WALSH et al., Appellees.

No. 6796.

Court of Civil Appeals of Texas, Amarillo.

Sept. 22, 1958.

Rehearing Denied Oct. 27, 1958.

Vaughn E. Wilson, City Atty., and Fred O. Senter, Jr., Asst. City Atty., Lubbock, for appellant.

Boling & Griffith, Lubbock, for appellees.

CHAPMAN, Justice.

J. W. Walsh and S. P. Boling instituted this suit against the City of Lubbock to remove the cloud placed on S. P Boling's title to Lots 7 and 8 in Block 10, Sunny Hill Addition to the City of Lubbock and J. W. Walsh's title to Lot 9 in said block, alleging said respective titles were clouded by virtue of purported paving assessment certificates issued by the City of Lubbock in its attempt to create paving liens against said property. By crossaction the City of Lubbock sought judgment against J. W. Walsh, M. E. Walsh, John Lee Smith and S. P. Boling, individually for the respective amounts alleged and for foreclosure of their alleged paving liens against the lots above named. In the alternative they asked for foreclosure of an undivided one-half interest in said lots.

The case was tried to the court. Judgment was rendered removing the cloud placed on the title to the three lots named by virtue of the attempted paving liens and personal judgments were rendered against J. W. Walsh and M. E. Walsh for the costs of the paving placed by the city on the streets abutting said lots. M. E. Walsh and J. W. Walsh have not appealed from the personal judgment granted against them.

At the request of appellant the trial court made findings of fact and conclusions of law. Among the 40 separate findings the trial court made were the following in substance:

M. E. Walsh purchased the lots named in 1947; M. E. Walsh and wife Ida Hester Walsh owned Lots 7 and 8 from that time until they were conveyed by them to J. D. Nelson on January 3, 1957, and during all that time claimed them as their homestead; they nor anyone else ever at any time executed a materialman's or mechanic's lien or any contract in writing agreeing to pay any paving assessment; J. W. Walsh purchased Lot 9 in said Block from M. E. Walsh and wife in October 1952 and shortly thereafter he and his wife moved onto it and have been living there ever since; on May 24, 1956, the City of Lubbock enacted a final reading ordinance authorizing a paving contractor to pave the abutting streets to said Lots 7, 8 and 9 at a total cost of $1,272.53, the streets were paved and the costs thereof were attempted to be assessed against J. W. Walsh, M. E. Walsh, John Lee Smith and S. P. Boling; in February 1952, in the District Court of Lubbock County, Ida Hester Walsh secured a divorce from M. E. Walsh, on March 10, thereafter, M. E. Walsh gave notice of appeal, later perfected it, and on September 22 in the same year the Court of Civil Appeals reversed the divorce decree and the parties immediately started living together again as husband and wife; on February 27, 1954, Ida Hester Walsh secured another divorce from M. E. Walsh, which was not appealed from, but in less than 10 days they remarried and started living together again; M. E. Walsh and wife were living on Lots 7 and 8 at, prior, at subsequent to the time the city enacted the ordinance calling for paving the abutting street; on May 1, 1952, during the interim in which the divorce appeal was pending Ida Hester Walsh in the name of Ida Walsh Carr executed an instrument pertaining to onehalf interest in Lots 7, 8, 9 and 10 in said block and subdivision to S. P. Boling and John Lee Smith, which recited the real consideration for the instrument was legal representation in a suit for divorce and a recovery of an undivided one-half interest in all community property acquired during marriage; prior to filing the divorce suit that was appealed and reversed Ida Hester Walsh executed a contract of employment with Boling, Smith and Allen (Allen left the firm before the case was tried) for said attorneys to represent her in the prosecution to final judgment of her suit for divorce and division of community property and agreed to convey to them one-half of the real estate recovered, but the attorneys never prosecuted the case to final judgment and never recovered any real estate for her; the attempted conveyance by Ida Walsh Carr to John Lee Smith and S. P. Boling was understood by all parties to the conveyance to be an undivided one-half interest in her undivided one-half interest she was seeking to recover from her husband in the divorce action; during the time M. E. Walsh and his wife were separated and the divorce case pending he was under injunction to stay away from the home; during the time the divorce case was pending M. E. Walsh visited around from one place to another with relatives but he and Mrs. Walsh corresponded; he never left her with intention of abandoning her, he stayed away from her only while he was enjoined, and he never at any time left Lots 7 and 8 with the intention of never returning; neither J. D. Nelson nor S. P. Boling at the time of accepting their respective conveyances assumed the payment of any assessment issued by the City of Lubbock against Lots 7 and 8 for paving nor did they assume the payment of any purported paving lien; neither J. W. Walsh nor M. E. Walsh ever at any time subsequent to the issuing of said paving assessment agreed to pay for the paving abutting the lots involved herein; after the appellate court reversed the divorce case appealed by M. E. Walsh, John Lee Smith and S. P. Boling disclaimed any interest in Lots 7, 8 and 9 and advised the City of Lubbock, prior to the time of the attempt on the part of the city to assess a paving lien against the property, that they neither owned nor claimed any interest in it; when requested to do so Messrs. Smith and Boling executed and delivered to M. E. Walsh a quit claim deed to Lots 7 and 8. Neither J. D. Nelson nor S. P. Boling assumed the payment of any assessment attempted to be placed against said lots by said city at the time of accepting their respective conveyances.

Certain facts were also stipulated, as follows: Ida Hester Walsh filed suit for divorce against M. E. Walsh on January 3, 1951, but the case was later dismissed; at the time Ida Walsh Carr executed the instrument of May 1, 1952, to S. P. Boling and John Lee Smith she and M. E. Walsh had no minor children, natural or adopted living with them; after the paving abutting Lots 7, 8 and 9 was finished the paving assessment certificates were issued to J. R. Fanning, the paving contractor, who duly assigned them to the city; appellees made demand upon the city to release the purported liens, which demands were refused; Ida Hester Walsh and Ida Walsh Carr were one and the same person, her maiden name having been Ida Carr.

Testimony adduced on the trial of the case, the fact stipulations made by the parties, and the findings of fact made by the trial court constituted ample grounds for such court to legally conclude that Lot 9 was the homestead of J. W. Walsh and wife, Thelma Walsh from the time they purchased it in 1952 and that Lots 7 and 8 were part of the homestead of M. E. Walsh and wife from the time they purchased them in 1947 until they sold them to J. D. Nelson in January 1957. John Lee Smith and S. P. Boling, attorneys, both testified in substance that they took the divorce case for Ida Hester Walsh on a contingency basis for one-half of her one-half of...