Vaughan v. Sterling Nat. Bank & Trust Co., 3772.

• Decision Date: 15 December 1938
• Docket Number: No. 3772.,3772.
• Citation: 124 S.W.2d 440
• Parties: VAUGHAN et al. v. STERLING NAT. BANK & TRUST CO. OF NEW YORK et al.
• Court: Texas Court of Appeals

Page 440

124 S.W.2d 440

VAUGHAN et al. v. STERLING NAT. BANK & TRUST CO. OF NEW YORK et al.

No. 3772.

Court of Civil Appeals of Texas. El Paso.

December 15, 1938.

Rehearing Denied February 2, 1939.

Appeal from District Court, Bexar County; Harry L. Howard, Judge.

Action by the Sterling National Bank & Trust Company of New York against Mamie J. Morris and Bessie J. Vaughan, individually and as independent executrices of the last will and testament of J. D. Guinn, deceased, and others, for the amount due on a special assessment for street widening levied against the estate of J. D. Guinn, deceased, and for foreclosure of an alleged lien against certain property. The defendants Uvalde Rock Asphalt Company, Southwest Bitulithic Company and Lottie Allercamp and her husband filed cross-actions. From the judgment, Bessie J. Vaughan and Mamie J. Morris, individually and as independent executrices of the last will and testament of J. D. Guinn, deceased, and others, appeal.

Affirmed.

A. G. McNeill, Kampmann & Burney, and W. P. Dobbins, all of San Antonio, for appellants.

Moursund, Ball, Moursund & Bergstrom, Sylvan Lang, Morris Wise, and Leslie Byrd, all of San Antonio, for appellees.

NEALON, Chief Justice.

This was an action brought in one of the District Courts of Bexar County by appellee, Sterling National Bank & Trust Company of New York, against Mamie J. Morris and Bessie J. Vaughan, the independent executrixes of the last will and testament of J. D. Guinn, deceased, and against the devisees in his will (Mamie J. Morris, Bessie J. Vaughan, Marguerite Peeler, Lalla Rookh Traylor and Mary Coers). Lottie Allercamp and husband were made parties defendant, and it was urged that a deed of trust given for their benefit by Mr. and Mrs. Traylor to secure payment of a debt of $1,000 was, if valid, subordinate to the liens of other lien claimants. Plaintiff prayed for judgment against the independent executrixes for the amount due on a certain special assessment for street widening done on South Alamo Street levied against the estate of J. D. Guinn, and against Lot 1, New City Block 155. Plaintiff prayed for foreclosure of its alleged lien against said property and the above named parties and their respective husbands, and also against Uvalde Rock Asphalt Co., Southwest Bitulithic Company and Lottie Allercamp and her husband, who filed a cross-action in which they sought to foreclose upon the undivided one-fifth interest of Lalla Rookh Traylor in said property on account of a deed of trust executed by Mrs. Traylor and her husband subsequent to the death of J. D. Guinn. Uvalde Rock Asphalt Company filed a cross-action seeking to foreclose an alleged lien which it claimed as owner of five assignable certificates of special assessment evidencing assessments for certain pavement work done by it on South Alamo Street, the assessments being against Mary Coers, Bessie J. Vaughan, Lalla Rookh Traylor, Marguerite Peeler and Mamie J. Morris, respectively, and upon their respective undivided one-fifth interests in said Lot 1, New City Block 155. It sought personal judgment against each of the said owners and foreclosure of its lien on each undivided one-fifth interest. The Southwest Bitulithic Company sought judgment foreclosing a certain special assessment lien levied upon said Block 1, of New City Block 155, and against J. D. Guinn for street paving work done on Arcinego Street, and also foreclosing a contract mechanic's lien executed by Guinn to secure payment for the same work. This Company not only sought foreclosure of its lien, but personal judgment against the independent executrixes, as such. Answers were filed by all defendants.

The case was heard without a jury. The court rendered a separate judgment in favor of the Sterling National Bank & Trust Company for the sum of $1,807.66 against each of the appellants, Mamie J. Morris, Marguerite Peeler, and Mary Coers, with foreclosure of lien against the undivided one-fifth interest owned by each of them, respectively; and in favor of the Uvalde Rock Asphalt Company for $344 against each of said five defendant owners, with like foreclosure against the undivided one-fifth interest of each of the three defendant owners last named; and in favor of the Southwest Bitulithic Company against Mamie J. Morris and Bessie J. Vaughan in their capacities as independent executrixes, for the sum of $1,053.84, establishing and foreclosing same as a first lien upon the undivided one-fifth interests of Bessie J. Vaughan and Lalla Rookh Traylor, and as a second lien inferior to those of the Sterling National Bank & Trust Company and the Uvalde Rock Asphalt Company upon the undivided one-fifth interests of Mrs. Peeler, Mrs. Morris and Miss Coers. The court denied the Sterling National Bank & Trust Company personal judgment against any of appellants. The court rendered personal judgment against Henry Traylor, and in favor of Mrs. Allercamp, but held her deed of trust invalid, and denied foreclosure. She did not appeal.

The Sterling National Bank & Trust Company and Uvalde Rock Asphalt Company are appealing and complaining that the evidence was insufficient to establish a homestead in Mrs. Traylor as to her one-fifth interest. The latter Company also complains of that portion of the judgment awarding Sterling National Bank & Trust Company a decree of foreclosure against the interests of Mrs. Morris, Mrs. Peeler and Miss Coers. Bessie J. Vaughan and Mamie Morris, individually and as independent executrixes, and Marguerite Peeler, Lalla Rookh Traylor and Mary Coers are appellants, complaining of that portion of the judgment directing the sale of the various interests in the property and the disposition of any proceeds in excess of the amount necessary to satisfy the judgment in favor of the Southwest Bitulithic Company.

The lot involved in this suit fronts on South Alamo Street in the City of San Antonio and is bounded on one side by Arcinego Street. It was purchased by J. D. Guinn in 1905 and became the homestead of his family. His wife died testate in 1924. He was named as sole devisee and legatee in her will and also appointed independent executor. He continued to live on the property with some of his children and used it as his homestead until his death on October 22, 1928. He left a will by the terms of which he appointed Mamie J. Morris and Bessie J. Vaughan independent executrixes of his will and devised his property in equal shares to his four married daughters, Bessie J. Vaughan, Mamie J. Morris, Lalla Rookh Traylor and Marguerite Peeler, and Mary Coers, a friend. The will was duly admitted to probate and the independent executrixes qualified as such on January 22, 1929.

When J. D. Guinn died his daughter, Bessie J. Vaughan, and her husband were living on the property. When Guinn died, his daughter, Lalla Rookh Traylor, and her husband were not living upon the property, but were living in a rented house. The court found as a fact that Mr. Traylor formed an intention to move upon the property upon J. D. Guinn's death, but ill-health prevented him from doing so; that he and his wife moved into the premises about November, 1930, having previously removed thereto some of their furniture; and that they owned no other property during any of the times involved.

March 25, 1927 J. D. Guinn executed a mechanic's lien contract by the terms of which he agreed to pay to the Southwest Bitulithic Company $954.25, together with seven percent interest and reasonable attorney's fees, if incurred, for the paving of Arcinego Street, and granted a mechanic's lien upon said property to secure the payment of said debt. The City of San Antonio attempted to issue a special assessment certificate to the Southwest Bitulithic Company, but it is conceded by all parties that the attempted special assessment lien was not valid because the property was the homestead of Mr. Guinn.

June 30, 1913 the City of San Antonio adopted the Street Improvement Law, being Chap. 14, General Laws of the 31st Legislature, 2d called Sess., now Arts. 1086-1105, Revised Civil Statutes of 1925, and on the 8th day of March, 1920 passed an ordinance known as the "Improvement Ordinance," to carry said law into effect and to provide rules and regulations for assessing abutting property. The ordinance was admitted in evidence.

February 27, 1928, during the lifetime of J. D. Guinn, the City passed an ordinance declaring that a public necessity existed for the widening and straightening of South Alamo Street and directing the City engineer to prepare plans and specifications covering the proposed improvement and report the same, together with the names of the property owners abutting thereon, to the City Commissioners. September 15, 1928, the City engineer filed his report and included "J. D. Guinn, S. H. Guinn, deceased, J. D. Guinn, independent executor," as the owners of the property involved. September 24, 1928 the City passed an ordinance approving the engineer's report and ordering that a hearing be given to owners of abutting property and all persons interested on October 15, 1928. Notice to abutting owners was duly published and a copy sent by registered mail to J. D. Guinn. At a hearing held on October 15, 1928, the City Commissioners heard and considered the evidence, arrived at their conclusions, and determined to proceed with the improvement and to pass the ordinance levying the assessment. December 3, 1928, subsequent to the death of J. D. Guinn, but prior to the admission of his will to probate, the City governing body passed an ordinance levying special assessments for widening and straightening South Alamo Street, including an assessment against the property here involved, and the estate of J. D. Guinn as the owner thereof, in the principal sum of $7,330.40, and ordained that said amount, together with interest and attorney's fees, if incurred, constituted a personal liability of the owners and a good and lawful lien...