Dalton v. Realty Trust Co.

• Decision Date: 05 December 1928
• Docket Number: (No. 3131.)
• Citation: 13 S.W.2d 398
• Parties: DALTON v. REALTY TRUST CO. et al.
• Court: Texas Court of Appeals

13 S.W.2d 398

DALTON v. REALTY TRUST CO. et al.

(No. 3131.)

Court of Civil Appeals of Texas. Amarillo.

December 5, 1928.

Rehearing Denied January 9, 1929.

Appeal from District Court, Lubbock County; Homer L. Pharr, Judge.

Suit by the Realty Trust Company against H. C. Lair and others. Judgment for plaintiff, and defendant Clara Dalton appeals. Affirmed on condition; otherwise, reversed and remanded.

R. A. Baldwin, of Slaton, for appellant.

George T. Lee and Dabney, Goggans & Ritchie, all of Dallas, for appellees.

JACKSON, J.

This suit was instituted in the district court of Lubbock county, Tex., by the plaintiff, the Realty Trust Company, a corporation, against the defendants, H. C. Lair, Nat P. Shaw and wife, Lena Shaw, Clara Dalton Brown and husband, O. H. Brown, and the Continental Savings & Building Association, a corporation.

The plaintiff alleges that the city of Lubbock is a municipal corporation, and as such, on July 10, 1924, by ordinance, regularly levied a special assessment in the sum of $226, against lot No. 6, block No. 1, of the G. A. Rush subdivision of the Overton addition to said city; that the assessment created a lien against said property and a personal liability against H. C. Lair, the owner thereof, for the pro rata part of the cost of paving said property; that the city contracted with the Panhandle Construction Company to improve said property, the paving was done, the work accepted by the city, and on June 16, 1925, the city issued a paving certificate in the sum of $226 to the Panhandle Construction Company against said lot and the owner thereof; that said certificate provided for payment in six equal annual installments, the first installment due in 30 days, and the second, third, fourth, fifth, and sixth installments due, respectively, one, two, three, four, and five years after the 24th day of June, 1925; that said certificate provided that each installment would bear interest at the rate of 8 per cent. per annum, contained the acceleration clause, and stipulated for reasonable attorney's fees as cost of collection if default was made in the payment; that on November 13, 1924, the defendants Nat P. Shaw and wife made, executed, and delivered to the Panhandle Construction Company a mechanic's lien contract, by the terms of which they gave a mechanic's lien to the Panhandle Construction Company to secure the assessment theretofore made by the city for the improvements on said lot, which included grading, excavating, paving, and the construction of curbs and gutters; that by the terms of said mechanic's lien contract, Nat P. Shaw and his wife agreed to pay said assessment in six installments, as provided for in the paving certificate issued by the city, and agreed to the issuance by the city of said certificate of assessment and the terms and conditions thereof; that thereafter defendants Nat P. Shaw and wife, by deed, conveyed lot 6 in block 1, above described, to Clara Dalton Brown, and as a part of the consideration for said lot, the said Clara Dalton Brown expressly assumed and agreed to pay all paving liens against the lot whereby an express vendor's lien, in addition to the assessment and contract liens, was created on said property, and the defendant Clara Dalton Brown became personally obligated and bound to pay said paving; that for a valuable consideration and in due course of trade, the Panhandle Construction Company assigned and set over to the Realty Trust Company the last five installments due on said certificate, assessment, and contract, and all liens, rights, titles, and remedies securing the payment of said assessment, and plaintiff is the present legal and equitable owner of said certificate, assessment, and contract; that default has been made by the defendants and each of them in the payment of the second installment, and for such default the plaintiff has declared the entire amount due, and the defendants have failed and refused to pay the same or any part thereof, to its damage in the sum of $400; that because of such default, it has become necessary to institute this suit and incur attorney's fees in the sum of $100, which is reasonable, for the institution and prosecution of said suit; that plaintiff's lien is a first and paramount lien against said property, and any rights held by defendants or either of them are subordinate and inferior to plaintiff's claim and lien.

The defendant Mrs. Clara Brown answered by general demurrer, special exceptions, general denial, and specially alleged that she is in no manner connected with the negotiable instruments on which the suit is based and is not liable thereon; that there is not and has never been any contract or privity of contract between her and the plaintiff relative to the paving certificate or notes sued on; that she never at any time made any promise, contract, or agreement for the benefit of plaintiff; that it is not entitled to a personal judgment against her for money based on the certificate sued on or upon any alleged assumption by her of such obligations, because, if such assumption of payment was ever made, it is void and unenforceable, because without consideration; that she does not own or claim any right, title, or interest in or to the real estate and disclaims all title or interest therein; that she is not liable for the attorney's fees claimed and sued for, because she never contracted to pay any attorney's fees, either by assumption or otherwise.

No question is raised pertaining to any issue contained in the pleadings of the other defendants, and none of them complain of the judgment of the court; hence, no statement of the pleadings of the other defendants is made.

The case was tried before the court without a jury, and judgment was rendered that plaintiff "do have and recover of and from the defendants, H. C. Lair, Nat P. Shaw, and Clara Dalton Brown, and each of them, the sum of $378.66, $226.00 of said sum being principal, $52.66 being accrued interest to date, and $100.00 being attorney's fees," and that plaintiff's lien be foreclosed against the property as to all the defendants; that the property be sold and the proceeds of the sale applied to payment of the cost and the judgment rendered, and any surplus, if any, be paid to defendant Nat P. Shaw; and that if the property...