Lewis v. Roach Manigan Paving Co.

• Decision Date: 04 March 1916
• Docket Number: (No. 7814.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 184 S.W. 680
• Parties: LEWIS et al. v. ROACH MANIGAN PAVING CO.
• Court: Texas Court of Appeals

184 S.W. 680

LEWIS et al. v. ROACH MANIGAN PAVING CO.

(No. 7814.)^*

Court of Civil Appeals of Texas. Ft. Worth.

March 4, 1916.

Rehearing Denied April 1, 1916.

Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.

Action by Violet Lewis and another against the Roach Manigan Paving Company. From a judgment for the defendant, plaintiffs appeal. Affirmed.

Hunter & Hunter, of Ft. Worth, for appellants. Bryan, Bartholomew & Stone, of Ft. Worth, for appellee.

DUNKLIN, J.

Acting under and by virtue of the special charter granted to the city of Ft. Worth by the Legislature of the state, the mayor and commissioners of said city duly and legally passed an ordinance, whereby it was ordered that Lipscomb street in said city should be paved, and advertisements for bids for such work were duly made. The Metropolitan Construction Company was one of the bidders, and, its bid having been duly accepted, it entered into a contract to do such paving, giving the necessary bond required, and the street was paved in compliance with said contract. At that time Hugh H. Lewis, Jr., and his wife, Violet Lewis, were the owners of lot No. 9 in block No. 3, Page's addition to the city, which abutted on Lipscomb street, and which was then their homestead. The Metropolitan Construction Company was unwilling to do the work in front of said lot to the middle of the street unless Lewis and wife should first execute a contract to pay therefor at the rate of $2.04 per square yard, which was the price agreed to in the contract with the city. Thereupon Lewis and wife executed and delivered to the company such a contract. This contract was duly signed and acknowledged by Lewis and wife in the manner required by article 5631, 4 Vernon's Sayles' Texas Civil Statutes, in order to fix a lien for material and labor for improvements upon a homestead. That contract, so executed and acknowledged, was delivered to the Metropolitan Construction Company before the work was begun, and the company would not have paved in front of said lot if said contract on the part of Lewis and wife had not been first made. The value of the paving in front of said lot from its curb line to the center of the street and the width of the lot was $169.96, and by reason of the pavement the market value of the lot was enhanced in that sum. Some two years later Lewis and wife were divorced. This suit was instituted by Violet Lewis alone, whose title to the property at the time of the institution of the suit seems not to have been questioned, for a cancellation of the apparent lien so fixed upon said lot. E. P. White had purchased all claims of the Metropolitan Construction Company for such paving, and he intervened in the suit, and, in addition to a resistance of plaintiff's demand, by way of cross-action he asked for a foreclosure of the lien for the value of the improvements, independent of the contract price therefor. Pending the litigation, S. King purchased the property from Mrs. Lewis, and he was made a party defendant by E. P. White to answer the latter's cross-action for foreclosure. Judgment was rendered, denying a cancellation of the lien and decreeing a foreclosure thereof in favor of White against Mrs. Lewis and S. King for the value of the improvements, and also in favor of King on his cross-action against Mrs. Lewis, his vendor, for any sum that he might be compelled to pay by reason of such foreclosure. Mrs. Lewis and King have prosecuted this appeal, from the judgment denying a cancellation of the lien and foreclosing the same in favor of White. The case was tried upon an agreed statement of facts which included the facts recited above. In addition to those facts, it was further agreed that the property was acquired by H. H. Lewis, Jr., from the Jones Hurt Lumber Company, by warranty deed describing it as "Lot No. 9, block No. 3, of the R. M. Page addition to the city of Fort Worth." It was further agreed —

"that the plat of the R. M. Page addition shows that the front line of the lot in controversy runs along the east line of Lipscomb street, and, according to said plat, does not extend on to any part of said Lipscom street; that in the deed of dedication from R. M. Page the said Page dedicates the streets and alleys in his addition to the public."

But one question is involved upon this appeal, which is stated by appellants as follows:

"Whether or not the deed conveying...