Heisig v. Vaughan & Gardner
| Decision Date | 27 February 1929 |
| Docket Number | (No. 3644.) |
| Citation | 15 S.W.2d 113 |
| Court | Texas Court of Appeals |
| Parties | HEISIG v. VAUGHAN & GARDNER.<SMALL><SUP>*</SUP></SMALL> |
Young & Stinchcomb, of Longview, for plaintiff in error.
E. M. Bramlette, of Longview, for defendant in error.
This is an action by the defendant in error to recover the sum of $241.23, with interest and attorney's fees, due upon a paving certificate issued by the city of Longview, and to foreclose a special tax lien on a lot situated on Methvin street of that city. The facts found and filed by the judge before whom the case was tried are, in substance, as follows:
In August, 1919, the city of Longview determined to pave Methvin street, and thereafter adopted the necessary resolutions, ordinance, and other proceedings required by its charter and the law of the state to authorize the assessment of a part of the cost of the paving against the abutting property owners. At the time the assessments were made, the paving completed, and the certificates issued, the lot involved in this suit was owned by T. C. Morgan. The special tax assessed against Morgan amounted to $241.23. Both the assessing ordinance previously adopted and the certificate recited that a lien for the amount of the tax was fixed against the lot. A short time thereafter the lot was sold under an execution issued against Morgan, and was purchased by the plaintiff in error for the sum of $700.
It appears from the record that the plaintiff in error was at the time a nonresident of the city of Longview, and had no actual notice of the existence of the tax lien against the property or of the municipal proceedings by virtue of which the paving was done. In this appeal the regularity of proceedings and the validity of the tax and lien as it originally existed are conceded. The only defense is that the plaintiff in error, at the time of his purchase, had neither actual nor constructive notice of the existence of the lien. The court found that he did not have actual notice, and that neither the assessing ordinance, nor the contract under which the paving was done, nor the certificate sued on, was recorded in the office of the county clerk of that county prior to the sale of the lot. The judgment foreclosing the tax lien was based upon the conclusion of the trial court that the plaintiff in error was charged with notice of the municipal proceedings authorizing the paving as they appeared in the municipal records. The sole question presented in this appeal is: Was that holding correct?
Counsel for plaintiff in error contend that liens of this character come within the provisions of our registration laws and must be recorded in the office of the county clerk in order to furnish constructive notice of their existence to subsequent purchasers. Article 6626 of the present revision, upon which they rely, is as follows: "The following instruments of writing, which shall have been acknowledged or proved according to law are authorized to be recorded, viz., all deeds, mortgages, conveyances, deeds of trust, bonds for title, covenants, defeasances or other instruments of writing concerning any lands or tenements, or goods and chattels, or movable property of any description."
We are of the opinion that the above provisions refer to written conveyances, contracts, and liens which owe their existence to agreements between the parties, and not to those created by law. Uvalde Co. v. Tribble (Tex. Civ. App.) 292 S. W. 932. If the lien which the defendant in error seeks to foreclose owes its existence solely to the contract under which the paving was completed, or to the terms of the certificate issued to the contractors who did the work, then there may be some reason why one or the other of those instruments should be recorded in the office of the county clerk, in order to furnish constructive notice to subsequent purchasers. But, if the lien is the creature of the law, or results as an incident which the law attaches to the paving transaction and the conditions under which the paving was done, there does not appear any legal reason why the evidence of the lien should be recorded elsewhere than the place where the official record of the municipal proceedings were kept.
The proof shows that the city of Longview was incorporated under the provisions of a special charter granted by the Legislature in 1911. See Special Laws of the 32d Legislature, p. 1. By its terms the act required the courts to take judicial notice of the charter and its provisions. The act also recites that the city of Longview had previously adopted the terms and benefits of chapter 14 of the Acts of the 2d Called Session of the 31st Legislature, which appears as chapter 11 of...
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Spencer v. Maverick, 10674.
...to take notice of the existence of those improvements and of the proceedings of the municipality with respect thereto (Heisig v. Vaughn, Tex.Civ.App., 15 S.W.2d 113; Uvalde Co. v. Tribble, Tex.Civ.App., 292 S.W. 932), the extraneous fact of the existence of those improvements cannot be said......
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Lubbock Independent School Dist. v. Owens, 5923.
...should be recorded elsewhere other than the place where the official records of each of these appellants were kept. Heisig v. Vaughn and Gardner, Tex.Civ.App., 15 S.W.2d 113, writ Fourth, the appellants contend that costs in a tax suit cannot be charged against a home rule municipal corpora......
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City of Dallas v. Coffin
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