L. E. Whitham & Co. v. Donovan

• Decision Date: 07 November 1928
• Docket Number: (No. 3107.)
• Citation: 11 S.W.2d 197
• Parties: L. E. WHITHAM & CO. v. DONOVAN et al.
• Court: Texas Court of Appeals

11 S.W.2d 197

L. E. WHITHAM & CO. v. DONOVAN et al.

(No. 3107.)

Court of Civil Appeals of Texas. Amarillo.

November 7, 1928.

Rehearing Denied December 5, 1928.

Appeal from District Court, Wichita County; W. W. Cook, Judge.

Action by L. E. Whitham & Co. against Kate F. Donovan and others. From the judgment, plaintiffs appeal. Affirmed.

Millburn E. Nutt, Carrigan, Britain, Morgan & King, and E. R. Surles, all of Wichita Falls, for appellants.

Mathis & Caldwell, of Wichita Falls, for appellees.

RANDOLPH, J.

This suit was filed by appellants against Mrs. Kate Friberg Donovan, her husband, John L. Donovan, and J. E. Friberg, to foreclose a paving assessment certificate, and the lien securing same, on a lot in the city of Wichita Falls, Tex. The amount sought to be recovered was $922.30, with interest.

The regularity of the proceedings by virtue of which the certificate was issued and the regularity of the certificate is not questioned, except in this: The lot on which the certificate was attempted to be foreclosed was found by the jury to be appellee's homestead. This homestead right came by virtue of appellee's first marriage to William Friberg. By her marriage with Mr. Friberg she had five children. Donovan, her second husband, while he was living with his wife, had no interest in the property upon which the lien was sought to be foreclosed. The title to the property was in Mrs. Donovan, as survivor of the community of herself and William Friberg, deceased, and the five children of that marriage. The lot, being the homestead of appellee, it was not subject to the lien of the paving certificate; hence the trial court, in rendering judgment against Mrs. Donovan, only rendered a personal judgment. The children of the first marriage were all of legal age at the time the paving proceedings were instituted.

The trial court rendered judgment for one-half of the amount sued for by appellant as against the defendant, Mrs. Donovan, and from this judgment this appeal has been taken by Whitham & Co., who contend that they should have had a personal judgment for the full amount of the certificate, for the reason that appellee was only an owner of an undivided one-half interest in the lot, and her children owned title to the other undivided one-half interest, yet she was in possession of same as her homestead, and was entitled to the sole possession of same as such homestead. Mrs. Donovan's homestead right and possession was a life estate, and, as such life tenant in possession, the whole liability for the paving debt became a charge against her, and was not in part chargeable to the owners of the other undivided one-half interest of the lot, who were not in possession and not entitled to possession as against Mrs. Donovan. This proposition of the sole liability of Mrs. Donovan is based upon the claim of appellant that temporary improvements are chargeable against the life tenant in possession, and not in whole or in part to the remainderman out of possession.

The charter of the city of Wichita Falls provides for assessments against benefited property and a personal liability for such assessment naturally follows, though the property be a homestead. City of Dallas v. Atkins et al., 110 Tex. 627, 223 S. W. 170.

The question of the liability of appellee for the sum named in the judgment rendered appears from the record to be conclusively shown. The briefs of the parties treat the question before us as one between the parties appearing as life tenant and remainderman. Such is not the position of the parties. Mrs. Donovan is a life tenant of the whole property, but her children, under this record, are cotenants with her. It appears from the record, as stated, that the lot in controversy was community property of Mrs. Donovan and her first husband. Hence, upon his death, Mrs. Donovan's ownership to one-half of the property remained unchanged, the other one-half descending to their children by their marriage, subject to her homestead claim. Article 2571, subd. 2, Revised Civil Statutes.

The children, having arrived at maturity, could not assert their exclusive right to...