Creosoted Wood Block Paving Co. v. McKay

• Decision Date: 26 April 1919
• Docket Number: (No. 8181.)
• Citation: 211 S.W. 822
• Parties: CREOSOTED WOOD BLOCK PAVING CO. v. McKAY et al.
• Court: Texas Court of Appeals

Page 822

211 S.W. 822

CREOSOTED WOOD BLOCK PAVING CO. v. McKAY et al.

(No. 8181.)

Court of Civil Appeals of Texas. Dallas.

April 26, 1919.

Appeal from Dallas County Court; Kenneth Foree, Judge.

Action by the Creosoted Wood Block Paving Company against A. C. McKay and others. From a judgment for only a part of the relief demanded, plaintiff appeals. Reversed and remanded.

George Sergeant, of Dallas, for appellant.

Gano & Gano and Geo. T. Burgess, all of Dallas, for appellees.

RASBURY, J.

Appellant sued appellees, A. C. McKay and his wife, upon a paving certificate issued by the city of Dallas for $294.71, interest thereon at 7 per cent. per annum from October 31, 1913, and for attorney's fees and for foreclosure of a lien declared by the city and of a mechanic's lien on lots 6 and 7, block 3078—95 of the city of Dallas, voluntarily executed by McKay and wife, to secure payment of the cost of such paving. The Investors' Mortgage Security Company, Limited, who, it was alleged, had a lien on said property, was made a party to the suit, and judgment sought against it decreeing its lien inferior to the liens asserted by appellant. Jury was waived and trial had before the court, resulting in a personal judgment against A. C. McKay for the amount of the debt, principal, interest, and attorney's fee, but refusing a foreclosure of the liens. By appropriate assignments of error the correctness of the court's judgment was challenged, and the case appealed to this court.

The facts affecting the issues presented, in the order of their occurrence, are these: A. C. McKay acquired lots 6 and 7, block 3078—95 of the city of Dallas under deed of general warranty June 15, 1910. At the time McKay acquired the land there was a lien thereon in favor of Investors' Mortgage Security Company, Limited, to secure payment of a note for $1,500, retained in a trust deed dated November 18, 1901, and executed by R. M. Harp, a former owner of the property. By various agreements between Harp, his vendees and the Investors' Mortgage Security Company, Limited, the payment of the debt was extended, and the lien in its original character, force, and purpose continued as security therefor; the last agreement being with A. C. McKay and wife. The city of Dallas, by resolution and ordinance, contracted with appellant to pave the street upon which McKay's property abutted, and the certificate sued upon and issued to appellant by the city after the street was paved in evidence of McKay's pro rata share of the cost of the pavement recites, among other matters, that the assessment or cost of paving was levied by virtue of an ordinance of the board of commissioners providing that the cost should be paid in installments, bear 7 per cent. per annum interest, and provides for reasonable attorney's fees if incurred, and should constitute a first and paramount lien on abutting property, save as to ad valorem taxes, and a personal liability against the owner of the property, and should be paid to the city assessor and collector of taxes. The ordinance referred to in the certificate, however, was not offered in evidence. In addition to the action taken by the city in reference to assessing the cost of paving the street pro rata against the property abutting thereon appellees McKay and wife executed voluntarily what is claimed to be a statutory mechanic's lien on their property so abutting upon the street. Inasmuch as the validity of the instrument is of controlling importance, we copy the portions thereof which in our opinion determine its validity vel non. They are the following:

"We, A. C. McKay and his wife, owners of the following described property * * * in consideration of the improvement [reciting it] to be made by virtue of a resolution heretofore adopted by the board of commissioners of the city of Dallas * * * promise to pay Creosoted Wood Block Paving Company (reciting the amount which shall not exceed $294.71 and the manner of its payment, including 7 per cent. interest and 10 per cent. attorney's fees if incurred); and in consideration of said improvements to and upon said premises and the fact that thereby the value of said property will be enhanced in excess of the cost of such improvements, we, the undersigned, do hereby expressly confess, admit, give and grant unto said Creosoted Wood Block Paving Company, the contractor who is to furnish the labor and material with which to construct said improvements, and their assigns, the mechanic's, builder's, contractor's and materialman's lien on said premises; * * * and we hereby consent that the board of commissioners of said city may levy a special assessment against said property for the amount ascertained. * * * Witness our hands this 4th day of April, 1913. A. C. McKay, Mrs. A. C. McKay."

Both parties acknowledged the execution of the instrument before J. N. Meek, notary public for Dallas county, Mrs. McKay's acknowledgment conforming in all respects to the statutory provisions for married women. Certain evidence relating to the disqualification of the notary to act was admitted. The facts deducible from such evidence will be recited under assignment of error presenting that issue. The property sought to be affected by all the transactions detailed was at such time and prior thereto the admitted homestead of McKay and wife.

The first assignment of error brings in review the action of the court in refusing to admit in testimony the foregoing instrument. It was excluded on the ground that the name of Mrs. McKay did not appear therein as grantor, as a consequence of which she was not bound thereby. It is the fixed rule in the courts of the United States and in the courts of most of the states that one who does not appear on the face of a deed to be a party thereto, or whose name is not recited in the premises thereof, is not bound thereby, and that as to such person it is wholly inoperative. Stone v. Sledge, 87 Tex. 49, 26 S. W. 1068, 47 Am. St. Rep. 65; Agricultural Bank, etc., v. Rice et al., 4 How. 225, 11 L. Ed. 949; Cordano v. Wright, 159 Cal. 610, 115 Pac. 227, Ann. Cas. 1912C, 1044, and note; 1 Devlin, Real Estate (3d Ed.) § 194, p. 282. Instruments creating liens on real estate of whatever character are conveyances thereof, and hence the rule affects such instruments in the same manner that it affects ordinary conveyances. The question then is, Does the instrument tendered in evidence come within the rule? We conclude it does not, and that the trial court erred in excluding it from consideration. In most, if not all, of the adjudicated cases the deeds purported to be and were from those named in the premises as grantors, while affixed thereto at the usual place for signatures was the name of another, who neither by name, reference, description, nor otherwise appeared to be a party thereto. In Stone v. Sledge, supra, our ruling case, the deed was and purported to be nothing more than a deed from Stone to Morrison, but to which was attached the signature of his wife. She was neither named, referred to, nor described in the body or premises of the deed as a grantor. In that case it was said that—

"The intention of the parties to a written contract must be derived from the language of the contract itself; and, when there is nothing in a deed to show an understanding on the part of one of the signers to convey" the signature and acknowledgment alone are insufficient to manifest such purpose.

But in the case at bar, while the name of Mrs. McKay is not recited in the body or premises of the deed it does, in our opinion, appear therefrom that she was a party thereto, and that an understanding on her part to convey can be "derived from the language of the contract itself." We have recited the deed. In its premises it purports to be from "McKay and his wife," who assert themselves to be the owners of the property, and who collectively join in every warranty agreement or promise contained in the instrument. It is signed by A. C. McKay and Mrs. A. C. McKay, and the latter acknowledges that sh...