Uvalde Rock Asphalt Co. v. Hightower
| Decision Date | 02 January 1941 |
| Docket Number | No. 3397.,3397. |
| Citation | 154 S.W.2d 940 |
| Parties | UVALDE ROCK ASPHALT CO. v. HIGHTOWER et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Jefferson County; Geo. C. O'Brien, Judge.
Action by Mrs. L. B. Hightower and others against the Uvalde Rock Asphalt Company to cancel a lien, contract of extension and renewal, deed of trust and a note, wherein defendant filed a cross-action. From a judgment for plaintiff, defendant appeals.
Reversed and remanded.
See, also, 135 Tex. 410, 144 S.W.2d 533.
W. P. Dobbins and Kampmann & Burney, all of San Antonio, and Nall & Weller, of Beaumont, for appellant.
E. B. Votaw, of Beaumont, for appellees.
On the 20th day of June, 1924, Judge L. B. Hightower, joined by his wife, Dora Votaw Hightower, duly executed, acknowledged and delivered to appellant, Uvalde Rock Asphalt Company, a "Mechanics, Materialmen's, and Paving Lien Contract" upon and against certain property in the city of Beaumont, constituting at that time their homestead, to secure the payment of the cost of the improvements described in the contract, street paving in front of the property, etc., in the sum of $530.97, to be paid in five installments, due as follows: One-fifth on December 12, 1924, one-fifth on December 12, 1925, one-fifth on the 12th day of November, 1926, one-fifth on the 12th of November, 1927, and one-fifth on the 12th of November, 1928. On the 17th day of October, 1929, when the balance due on the original indebtedness amounted to $638.42, and at a time when it was not barred by limitation, without the joinder of his wife, Mrs. Dora Votaw Hightower, and without her knowledge or consent, Judge L. B. Hightower entered into a contract of renewal and extension of the balance due on the original indebtedness by executing to appellant a promissory note for the balance due, dated the 17th day of October, 1929, to be paid in four installments, each for the sum of $159.60, maturing on the 17th day of October, 1930, 17th of October, 1931, 17th of October, 1932, and 17th of October, 1933; in connection with the execution and delivery of this note, Judge Hightower executed a deed of trust, which was also a contract of renewal and extension of the balance due on the original indebtedness and of the original lien as security for the payment of the note, upon the same property described in the original contract and against which appellant held its original lien. At the time of the execution of the contract of renewal and extension and of the deed of trust, the property described therein and against which appellant claimed its lien both by the original contract and by the deed of trust, was the homestead of Judge Hightower and his wife, Dora Votaw Hightower; this property was their homestead long before the execution of the original contract and lien, and continued their homestead from the time it was originally acquired and dedicated to homestead purposes until the death of Judge Hightower in 1932, and has remained continuously the homestead of his widow, Mrs. Dora Votaw Hightower, to the present time.
This action was filed originally by Mrs. Dora Votaw Hightower, the widow and survivor in community of Judge L. B. Hightower, decd., joined by the children born to her and Judge Hightower, against appellant, praying for cancellation of the original lien, the contract of extension and renewal, and the deed of trust, as executed by Judge Hightower, and the note executed by him, as above described, in so far as they purported to constitute a lien against the homestead, on the ground, among others, that the original lien and indebtedness were barred by limitation; the theory of the petition was that the renewal notes and the contract of extension and renewal and the deed of trust, as executed by Judge Hightower and delivered by him to appellant, were void because Mrs. Hightower, his wife, had not joined in their execution and, therefore, the original indebtedness and the original lien were barred by limitation as a claim against the homestead. Appellant answered by cross action, praying for judgment foreclosing its original lien as evidenced by the renewal notes, the contract of extension and renewal, and the deed of trust, and also prayed for a personal judgment against the plaintiffs for the amount due on its claim. On trial to the court without a jury, judgment was rendered sustaining the plea of limitation and declaring void the renewal notes, the contract of extension and renewal, and the deed of trust, in so far as they purported to create a lien against the homestead property. Appellant has duly prosecuted its appeal to this court.
The judgment of the lower court has support in the law as announced by Sec. 481 of Speer on Marital Rights, 3d Ed., and in San Antonio Real Estate, Bldg. & Loan Ass'n v. Stewart et ux., 27 Tex.Civ.App. 299, 65 S.W. 665; Sudduth v. DuBose, 42 Tex.Civ.App. 226, 93 S.W. 235. The Sudduth case is the only authority cited by the parties in their briefs directly in point on the facts; the parties, on oral argument, made the statement that they had been unable to find any other authority in Texas directly in point on the facts. It seems to us in principle that the following authorities are in point and hold affirmatively that Judge Hightower had the power without the joinder of his wife, to execute the contract of renewal and extension: Odom v. Empire Bldg. & Loan Ass'n, Tex.Civ.App., 134 S. W.2d 1053; Standard Savings & Loan Ass'n v. Davis et ux., Tex.Civ.App., 85 S. W.2d 333; Thomason v. Pacific Mutual Life Ins. Co. of Calif., Tex.Civ.App., 74 S.W.2d 162. In Cooley v. Miller, Tex.Com. App., 228 S.W. 1085, 1086, the Commission of Appeals said:
On authority of the case last cited, we can perceive no difference between liens for purchase money and taxes and the lien created in favor of appellant by the due execution by Judge Hightower and his wife of the original paving contract. Since it is well settled that the husband, on the community homestead, can renew the vendor's lien and a subrogated tax lien without the joinder of the wife, it follows that Judge Hightower, without joinder of his wife, had the power to renew the original lien in issue herein, provided the property was the community homestead.
After Judge Hightower's death, the following correspondence passed between appellant and Mrs. L. B. Hightower:
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