Uvalde Rock Asphalt Co. v. Hightower
| Decision Date | 02 December 1942 |
| Docket Number | No. 2434-7964.,2434-7964. |
| Citation | 166 S.W.2d 681 |
| Parties | UVALDE ROCK ASPHALT CO. v. HIGHTOWER. |
| Court | Texas Supreme Court |
In this suit Mrs. Dora Votaw Hightower, survivor in community of Judge L. B. Hightower, deceased, joined by the children born to her and Judge Hightower, sought to remove a cloud from the title to the homestead occupied by Judge and Mrs. Hightower during his lifetime and still so occupied and used by her. More specifically the relief sought was the cancellation of a paving lien contract and a subsequent renewal contract and deed of trust executed by Judge Hightower alone without the knowledge, joinder or consent of Mrs. Hightower renewing and extending the original obligation. The theory upon which relief was sought was that the original obligation had become barred by the statute of limitation of four years, Art. 5527, Vernon's Ann.Civ.St., before this suit was filed, and that the deed of trust and renewal contract executed by Judge Hightower were void as against the homestead rights of Mrs. Hightower, because he had no authority to renew and extend the original obligation or execute the deed of trust lien securing same as extended. By cross action the defendant, Uvalde Rock Asphalt Company, declared upon the extended indebtedness and prayed for a foreclosure of its original lien and the deed of trust lien. In the trial court judgment was rendered in favor of the plaintiffs as prayed for in their petition and denying to the defendant any recovery on its cross action. The trial court's judgment was reversed and the cause remanded by the Court of Civil Appeals. 154 S.W.2d 940.
Under the view which we entertain of the controlling question, it becomes unnecessary for us to consider the grounds upon which the Court of Civil Appeals ordered the case retried, and we shall, therefore, take no notice thereof in this opinion.
Both parties filed applications for writs of error and each was granted. Hence the case is before us for consideration upon the theories of each of the parties. We have concluded, however, that the pivotal point upon which the case should turn is that raised by assignment of error No. one in the application of Mrs. Hightower, et al., and our opinion will be limited to a discussion thereof. That assignment questions the authority of Judge Hightower, without the joinder, knowledge or consent of his wife, to execute the renewal and extension contract and deed of trust and thereby renew and extend the original obligation and lien as against the homestead rights of his wife. If he had no such authority and his contract and deed of trust were void as to the homestead, then Uvalde Rock Asphalt Company is reduced to a reliance upon the original contract and lien which were barred by limitation before the suit was filed.
Under our view of the controlling question it is immaterial whether the property was community or was the separate property of Mrs. Hightower, but in the light of the pleadings and a stipulation entered into by counsel and brought forward in the statement of facts, we conclude that, according to this record, the property was community, and was not the separate property of Mrs. Hightower. The property was the homestead of Judge and Mrs. Hightower long before the execution of the original contract and lien and continued to be their homestead until the death of Judge Hightower in 1932 and has continued to this...
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