Uvalde Co. v. Tribble

• Decision Date: 02 March 1927
• Docket Number: (No. 7721.)
• Citation: Uvalde Co. v. Tribble, 292 S.W. 932 (Tex. App. 1927)
• Parties: UVALDE CO. v. TRIBBLE et al.
• Court: Texas Court of Appeals

292 S.W. 932

UVALDE CO. v.TRIBBLE et al.

(No. 7721.)

Court of Civil Appeals of Texas. San Antonio.

March 2, 1927.

Rehearing Denied March 30, 1927.

Appeal from District Court, Webb County; Robt.W. B. Terrell, Judge.

Suit by the Uvalde Company against C. C. Tribble and others.From the judgment, plaintiff appeals.Reversed and rendered in part, and affirmed in part.

Terrell, Davis, Huff & McMillan and E. W. Clemens, all of San Antonio, for appellant.

Thomson, Dilworth & Marshall, of San Antonio, for appellees.

FLY, C. J.

Appellant instituted this suit against A. K. Garretson and wife, M. C. Garretson, C. C. Tribble, and F. M. Kuhn, to recover the sum of $433.84, alleged to be due on a paving certificate issued by the city of San Antonio, evidencing a special paving assessment made by said city against lots 1, 2, 3, and 4, new city block 3063, due and payable by the owner of said lots A. K. Garretson, for paving on which said lots abut, as well as attorney's fees amounting to $250.

Liens were claimed against said lots and their foreclosure sought.None of the defendants filed an answer except C. C. Tribble, who claimed to be a purchaser in good faith of the property from the Garretsons, without notice of any lien against it created by ordinance of the city of San Antonio or by the acts of said Garretsons in giving a lien on said premises.The court rendered a judgment against Garretson and wife for the amount of the debt, but denied a foreclosure of the lien, and decreed that appellant take nothing as to C. C. Tribble, and F. M. Kuhn, not having been served, was dismissed from the suit.

It was agreed by the parties that the paving certificate sued on, being No. 8255, is valid and constitutes a lien on the property in question, unless the minutes of the city council showed its invalidity by reason of an insufficient hearing, that Garretson and wife had been the owners continuously, of the lots in question, at least since August 27, 1920, and that on November 26, 1920, Tribble entered into a contract of purchase with the Garretsons for the lots aforesaid.A paving contract was entered into on September 11, 1920, by and between A. K. Garretson and M. C. Garretson and appellant, which acknowledged a lien to exist on the property to secure the amount due for paving which had been assessed by the city against said property.The minutes showed that a proper hearing before the city government was given the Garretsons, and they at no time objected to the assessment.They gave a warranty deed to Tribble for the land on January 19, 1921.No instrument of any kind showing a lien against the lots for the amount due for paving was ever placed on file or recorded in the office of the county clerk of Bexar county before Tribble bought the property.The paving on the street was completed on January 6, 1921, and the paving certificate issued on that date.It was admitted that general notice was given in the Light, an evening paper in San Antonio, as to the ordinance requiring paving on the street on which the lots in question abutted, and the ordinance providing for the paving and creating the lien on the property was on file and of record in the city hall of San Antonio, and that the paving was being done at the time Tribble bought the lots.The city records also showed a contract by the city with appellant to pave the street of date August 27, 1920, and an inspection at that time of such records would have disclosed an assessment and lien against the lots of the Garretsons.It was also agreed that at least a week before November 26, 1920, work of paving the street in question was actually going on and was still in progress when the contract of sale was executed.It was agreed that Tribble went to see the lots and went over the street being paved.

The paving was done by appellant and a lien fixed by the city under the city ordinance and approved and reaffirmed by Garretson and wife.They were bound both as to debt and lien on the property and the only question is, Was Tribble an innocent purchaser without notice, actual or constructive?It may be stated in this connection that the burden of showing that he was an innocent purchaser of the property devolved on appellee.That was his defense, and it was his duty to prove that defense.Appellant was claiming a statutory lien on the property, and, if appellee had no notice of such lien, it devolved upon him to prove it.Watkins v. Edwards, 23 Tex. 448;Oak Cliff College v. Armstrong(Tex. Civ. App.)50 S. W. 610.

The general doctrine is that whatever puts a party upon inquiry amounts, in law, to notice.A person intending to purchase real estate is held to the duty of exercising prudence and ordinary diligence in following up any fact or circumstance which would lead to knowledge or notice of some claim against the property intended to be bought.In other words, when the evidence shows circumstances that should put an intending purchaser on inquiry as to claims against the property, the law will charge such intending purchaser with the notice that a due and reasonable inquiry into such circumstances would obtain.Halbert v. Debode, 15 Tex. Civ. App. 615, 140 S. W. 1011;Morton v. Towell, 56 Tex. 643.

It is agreed by the parties:

"That approximately one week prior to the execution of the contract of purchase of the property made by appellee and the Garretsons, dated November 26, 1920, the said C. C. Tribble, in person, made an inspection of the said premises described in said contract and in said deed, and over the street, Greenwood court, in front of said property."

That examination was made while the paving was being done, for which the certificate was afterwards given, and the conclusion is irresistible that appellee must have known that the street was being paved; he must have known that no one else could...