Realty Trust Co. v. Craddock

• Citation: 112 S.W.2d 440
• Decision Date: 26 January 1938
• Docket Number: No. 7325.,7325.
• Parties: REALTY TRUST CO. v. CRADDOCK.
• Court: Texas Supreme Court

Page 440

112 S.W.2d 440

REALTY TRUST CO. v. CRADDOCK.

No. 7325.

Supreme Court of Texas.

January 26, 1938.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Suits by Fain-Townsend Company and by L. E. Whitham & Company against L. L. Craddock to foreclose special assessment liens for paving on properties allegedly owned by defendant and for personal judgments on paving certificates, which suits were consolidated, following which Realty Trust Company intervened, seeking foreclosure of a similar lien and a personal judgment against defendant. Judgment for defendant was affirmed, 107 S.W. 2d 758, and intervener brings error.

Judgments reversed and cause remanded to the District Court for a new trial.

Goggans & Ritchie and Mart W. Reeves, all of Dallas, for plaintiff in error.

Upton, Upton & Baker, of San Angelo, for defendant in error.

CRITZ, Justice.

On August 15, 1925, Edward Maier and J. B. Keating, by general warranty deed, conveyed to L. L. Craddock the west 225 feet of the north one-half of block 41, Fort Concho addition to the city of San Angelo, Tom Green county, Tex., for a cash consideration of $800. This deed was filed for record in such county on November 23, 1925.

On January 20, 1926, Alfred R. Hardy and wife, by general warranty deed, conveyed to L. L. Craddock the west 100 feet of the south one-half of the above-mentioned block for a cash consideration of $1,000. The date when this deed was filed for record is not shown, so far as we are able to ascertain from the statement of facts. It seems to be admitted that it was filed and recorded before any of the paving proceedings hereinafter mentioned transpired.

At the times the above properties were acquired, L. L. Craddock was married to Viola Craddock. Viola Craddock died intestate on April 25, 1927, after the execution and delivery of the above two deeds, but before any of the hereinafter mentioned paving proceedings were had.

At the time of her death Viola Craddock left surviving her an adopted daughter, who also was the adopted daughter of her husband, L. L. Craddock. This daughter is known as Helen Gould Craddock. Viola Craddock left no heirs other than this adopted daughter and her husband. The adoption papers regarding the adopted daughter were recorded in a county other than Tom Green county, and no record in Tom Green county, which the city of San Angelo was charged with, gave it any notice that L. L. Craddock was a married man at the time he acquired the above properties, or at any other time here involved. Also, at such times no such record of the county gave any notice of Viola Craddock's death, or of any right or title she or her adopted daughter may have had in the above properties.

On August 21, 1928, the city commission of the city of San Angelo, Tex., issued to L. E. Whitham & Company paving certificate No. 103 — 84 in the principal sum of $1,480.28. As shown by pertinent orders pertaining thereto, this certificate was secured by a paving lien duly fixed on the west 100 feet of the south one-half of block 41, above mentioned.

On August 21, 1928, the city commission of the city of San Angelo, Tex., issued to L. E. Whitham & Company paving certificate No. 103 — 85 in the principal sum of $1,480.28. As shown by pertinent orders pertaining thereto, this certificate was secured by a paving lien duly fixed on the west 225 feet of the north one-half of block 41, above mentioned.

As shown by the opinion of the Court of Civil Appeals the above two assessments were each for a lump sum against L. L. Craddock alone, and such assessments were levied by virtue and authority of articles 1086 to 1096, inclusive, and 1104 and 1105, R.C.S.1925. Plaintiff in error admits that it asserts no rights under Acts of the Regular Session, 40th Legislature, c. 276, Vernon's Ann.Civ.St. art. 1105a, or Acts of the First Called Session, 40th Legislature, c. 106, Vernon's Ann.Civ.St. art. 1105b.

Each of the above paving certificates was payable to L. E. Whitham & Company in six installments, as evidenced by installment coupons attached. These six installment coupons matured, one thirty days after date, one a year after date, one two years after date, one three years after date, one four years after date, and one five years after date. They bear 7 per cent. interest from date, payable annually, and provide for a reasonable attorney's fee.

As shown by the record, L. L. Craddock, in whose name the above properties stood on the deed records at the times above indicated, executed no contract lien on these properties to secure these certificates.

It appears that at the time these certificates were issued, and at the times all proceedings pertaining thereto were had, these properties stood on the deed records in the name of L. L. Craddock. Also, at all such times the wife of L. L. Craddock was dead. No person representing the city, or in any way connected with these certificates, had any notice regarding the title to these properties, other than as shown by the deed records at any time while these above proceedings were transpiring.

After the happening of the above events, Fain-Townsend Company filed suit in the 119th district court of Tom Green county, Tex., against L. L. Craddock, seeking to foreclose a special assessment lien against L. L. Craddock on the above properties, and also seeking a personal judgment against said Craddock. In this suit Fain-Townsend Company asserted their rights in some way under the above-described paving certificates. After the filing of the Fain-Townsend Company suit, L. E. Whitham & Company filed another suit in the same court, seeking a foreclosure of special assessment liens upon these properties, as the holder of the first installments due on the above described two certificates, and also seeking to recover a personal judgment against L. L. Craddock for the amount of such installments. The two suits just mentioned were consolidated by order of the district court.

After the happening of the above events, Realty Trust Company, plaintiff in error here, intervened in the consolidated suit. By its plea in intervention, Realty Trust Company asserted ownership of the balance of the paving certificate coupons above described, and sought a foreclosure on the above properties, and also sought a personal judgment against L. L. Craddock for the amount due on such coupons.

The consolidated case was finally tried in the district court before a jury, but at the close of the testimony the court withdrew the case from the jury and entered judgment for L. L. Craddock and against Fain-Townsend Company, L. E. Whitham & Company, and Realty Trust Company. Realty Trust Company appealed to the Austin Court of Civil Appeals, which court affirmed the judgment of the district court. 107 S.W.2d 758, 760. Realty Trust Company brings error.

At this point we pause to remark that Fain-Townsend Company has not appealed from the district court judgment, and we are not further concerned with it. L. E. Whitham & Company appealed by writ of error to the above Court of Civil Appeals, and the judgment against it was also by that court affirmed. 107 S.W.2d 761. The L. E. Whitham & Company Case is before this court in cause No. 7326. 112 S.W.2d 444. We will dispose of it by separate opinion, though this opinion will settle the law questions involved in both cases.

If we properly interpret his pleadings, briefs, and arguments, L. L. Craddock contends that the paving certificate pertaining to one of the above-described tracts of land is illegal and void, and inoperative to fix any personal liability against him or lien on such land, because, at the time such certificate was issued and at the times all pertinent proceedings were had by the city pertaining thereto, Helen Gould Craddock, the above-mentioned adopted daughter, was the sole real owner of said tract. It is contended that such tract of land was purchased with the separate funds of the wife, and therefore was really her separate property, even though it stood on the records of the county in the name of L. L. Craddock. In this connection, it is finally contended that Helen Gould Craddock acquired title by inheritance from the deceased wife.

As we further interpret his pleadings, briefs, and arguments, L. L. Craddock contends that the paving certificate pertaining to the other tract of land herein involved is illegal and void, and inoperative to fix any personal liability against him or lien on said land, because the assessment was for a lump sum against him personally, and in the same way against the land, when he only really owned an undivided one-half interest therein and Helen Gould...