Creosoted Wood Block Paving Co. v. McKay

• Decision Date: 15 April 1922
• Docket Number: (No. 8660.)
• Citation: 241 S.W. 549
• Parties: CREOSOTED WOOD BLOCK PAVING CO. v. McKAY et al.
• Court: Texas Court of Appeals

241 S.W. 549

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

(No. 8660.)

Court of Civil Appeals of Texas. Dallas.

April 15, 1922.

Rehearing Denied May 20, 1922.

Appeal from District Court, Dallas County; Kenneth Force, Judge.

Suit by the Creosoted Wood Block Paving Company against A. C. McKay and others. From judgment giving it insufficient relief, plaintiff appeals. Reformed and affirmed.

See, also, 211 S. W. 822, 234 S. W. 587.

George Sergeant, of Dallas, for appellant.

Geo. T. Burgess, of Dallas, for appellees.

VAUGHAN, J.

Only two questions are presented by this appeal, and, to reflect same it is only necessary to make the following résumé of the pleadings without particularizing the several pleadings or the order in which same were filed, to wit:

Appellant, a private corporation, instituted its suit on the 13th day of December, 1915, against A. C. McKay and wife, Mrs. A. C. McKay, two of the appellees, to recover a personal judgment against them on a certain certificate of special assessment issued and delivered to appellant by the city of Dallas on the 9th day of December, 1913, in the principal sum of $294.71, and made payable by said appellees to appellant in three installments, one within 30 days after the 31st day of October, 1913, one 1 year after said date, and one 2 years after said date, with interest on each amount at the rate of 7 per cent. per annum from October 31, 1913, until paid, together with a reasonable attorney's fees if incurred in the collection of said obligation; also to foreclose a paving lien contract and mechanic's and materialman's lien contract on the following described property:

"84 ft. front on the N. W. line of Tenth St., part of lots 6 and 7 block 3078—95, according to the official map of the city of Dallas, Texas, described in deed from W. M. Buchanan and wife to A. C. McKay, dated June 15, 1910, recorded in vol. 481, p. 525, deed records of Dallas county, Texas"

—against A. C. McKay and wife and the Investors Mortgage Security Company, Limited, a private corporation, Seymour Wagner, and Maco Stewart, the other appellees.

Said paving lien certificate, issued by the city of Dallas, will not be further noticed as to lien claimed to have been created thereby on said property, as appellant does not contend on this appeal that same created a valid lien thereon, said property being now, and at the time of the execution of said paving lien certificate and continuously since, the homestead of appellees McKay and wife, and which was not executed by them in the manner and form required by law in order to create a valid lien on said property. Creosoted Wood Block Paving Co. v. McKay et al. (Tex. Civ. App.) 211 S. W. 822.

That on the 4th day of April, 1913, appellees A. C. McKay and wife, to secure the payment of said paving certificate, executed and delivered to appellant a mechanic's and materialman's lien on the property above described, which was acknowledged by said appellees on the 20th day of September, 1913, before J. N. Meek, a notary public of Dallas county, Tex. The object of appellant's suit being to recover personal judgment against McKay and wife for the amount due on said paving certificate and to foreclose said mechanic's and materialman's lien on their homestead as against all the appellees.

Appellees McKay and wife defended through general denial and plea setting up homestead exemption that the indebtedness claimed by appellant was not for improvements made upon their homestead, and that appellant had no contract in writing for said improvements which created a valid lien upon their homestead.

The Investors Mortgage Security Company, Limited, by its answer filed April 15, 1918, alleged that it had acquired and held a purchase-money debt for the sum of $1,500, secured by vendor's lien on said homestead of appellees McKay and wife, which by extension would be due June 1, 1918, and that if the lien claimed by appellant was valid against said property it was inferior and subject to its lien.

Appellant by supplemental petition alleged that said debt and lien had been by appellee Investors Mortgage Security Company, Limited, transferred to appellee Seymour Wagner, who was the legal owner and holder of same, and that same was superior to its lien.

So far as disclosed by the record, neither of the appellees Maco Stewart nor Seymour Wagner answered.

Trial was had before the court without a jury, resulting in judgment for appellant against McKay and wife for the sum of $531.33; said sum representing principal, $294.71, interest $136.62, and attorney's fees $100, without foreclosure of either of the liens claimed by appellant. From this judgment appellant alone appeals, presenting but one material question, to wit: Was the acknowledgment of the appellees Mr. and Mrs. A. C. McKay to the mechanic's and materialman's lien contract on their homestead taken by the notary public, J. N. Meek, of no effect, and said instrument void because of the fact that such notary public was then and there an employé of appellant corporation, the beneficiary or vendee in said instrument?

Unless said notary public was a stockholder in or an officer of said appellant corporation, or pecuniarily...