Sterling Nat. Bank & Trust Co. of New York v. Ellis , 75 S.W.2d 716 ( 1934 )

HALL, Chief Justice.

The appellant bank, as the transferee of a paving certificate, filed this suit to recover thereon against B. F. Ellis, Hal B. Smith, and the two corporations, Wichita Falls Building & Loan Association and Coe & Parks Lumber Company, and to foreclose the lien against lot 2 in block 34 of the Edgefield addition to the city of Amarillo.

It is alleged that a contract was entered into between the city of Amariljo and J. W. Zempter Construction Company, Inc., under which said company improved South Tyler street adjacent to said lot; that by virtue of an ordinance enacted by said city and a certificate of special assessment issued by the city to the construction company, the said company acquired a valid lien against the premises for the payment of the cost of such paving and improvements in the sum of $158.-76, with interest thereon at the rate of 8 per cent, per annum from the 29th day of July, 1930; that said sum is payable in five equal annual installments, the first of which was due on or before the 29th day of July, 1931; that by proper assignments and conveyances the plaintiff bank became the owner and holder of the certificate; that one or more of said installments is past due and unpaid and in accordance with the provisions of said certificate, plaintiff declared the whole amount due and was entitled to recover its debt and foreclose the lien, including the principal, interest, and reasonable attorneys’ fees.

The defendants Ellis, the Wichita Falls Building & Loan Association, and Coe & Parks Lumber Company answered, alleging, in substance, that the property was at the time of the creation of the paving lien, the homestead of Hal B. Smith; that he acquired it by warranty deed dated June 1,1927; that it was his homestead until it was sold under a deed of trust held by the Wichita Palls Building & Loan Association, which sale was made after the alleged paving lien had attached ; that in virtue of the trustee’s sale, the Wichita Falls Building & Loan Association acquired title thereto free and clear of said lien; that said association conveyed the property to J. L. Parks, who in turn conveyed the same to B. F. Ellis, free and clear of all liens held by plaintiff.

The ease was tried before the court without the intervention of a jury and resulted in a judgment against the appellant. According to the findings incorporated in the judgment, the property was the homestead of Hal B. Smith at the time the assessment ordinance was enacted; that the foreclosure under the deed of trust destroyed the alleged lien asserted by plaintiff; that the certificate of special assessment offered in evidence by plaintiff showed upon its face that it had been materially altered after its execution and delivery and decreed that the plaintiff bank take nothing.

The appellant contends that the testimony is insufficient to establish the defense that the property in question was the homestead of Smith and wife at the time the lien attached.

This contention must be sustained. . Smith testified that he bought the property on June 30, 1927; and lived there until September 1, 1928; that on said last date he moved over on Harrison street and leased a residence; that he never claimed the property after he moved out of it and never expected to return to it; -that he never expected to own it after’he'found he coulcf not'make the payments in September, 1928; that he never made any payments after September 1st. Mrs. Smith also testified to the same facts.

The judgment seems to have been entered under the mistaken impression that the property was not divested of its homestead character even after the abandonment by Smith and wife, until they had acquired another home. While in a sense the leased property upon Harrison street was their home, Smith and wife did not own it, but this would not affect the fact that they had intended to and actually abandoned the property in controversy as their homestead. Gross et al. v. White (Tex. Civ. App.) 67 S.W.(2d) 895; Gough v. Gibson (Tex. Civ. App.) 1 S.W.(2d) 684; Hudgins v. Thompson, 109 Tex. 433, 211 S. W. 580. . ’

We are further of the opinion that the court erred in holding that the certificate offered in evidence had been materially altered after its execution and delivery.

The original certificate has been made a part of the record and from an inspection thereof it shows that the ordinance levying the assessment was passed on the 10th day of December, 1929. It appears from a careful inspection that the certificate was so written as to show that the ordinance was passed on the 11th day of November, 1929. The name of the owner of the property as it appears upon the face of the certificate is “Hal B. Smith, record owner and Coe & Parks Lumber Company, claimant owner.” All of this except Hal B. Smith appears to have been written with the same typewriter and ribbon as was used in changing the date of the passage of the ordinance and it further appears that something has been erased and the words “record owner and Coe & Parks Lumber Company, claimant owner” written in lieu thereof. The stipulation does not affect this.

No reference is made in the pleadings of either party to this apparent alteration appearing upon the face of the certificate. The certificate, with the five coupons attached, are signed by Ernest O. Thompson, Mayor, and Lela Krebs, city secretary of the city of Amarillo. The certificate is therefore an official document and the rule is that if an erasure appears on the face of an official document and there is no evidence to show when it was done, it will be presumed, in the absence of evidence to the contrary, to have been done when the officer had authority to do it.

Wheeler, Justice, said in Miller v. Alexander, 13 Tex. 497, 65 Am. Dec. 73, in discussing the return of an officer :■

“The entry in question was the act of a public officer, in the performance of his duty, and the presumption, until the contrary appears, must be that it was made in proper time. To require the plaintiff to prove that it was so made, would be to require him to prove that the officer had not deviated from the line of his duty, which the law presumes without proof.”

Neither party introduced any evidence to explain the apparent alteration of the instrument, nor to show by whom, nor when it was so altered. 2 O. J. 1278, § 195; 1 R. O. L. 1044, § 78.

In view of another trial it is proper for us to discuss several other matters mentioned in the brief.

Under the statute (Vernon’s Ann. Civ. St. art. 1090) the general rule is that in cases of this character the plaintiff is entitled to recover reasonable attorneys fees. 23 Tex. Jur. 493, § 60.

Luring the trial the plaintiff waived its right to recover personal judgment against any of the defendants. The rule is that in a suit by a city to collect an assessment of this character a personal judgment against defendants is not necessary, even though the statute and the ordinance may give the certificate holder that right. He may waive his claim for a personal judgment for the amount of the certificate against the defendants and have a judgment in rem awarding him execution subjecting the property alone to the payment of his claim. That the certificate holder has not taken a personal judgment against the defendant is a matter of which the latter cannot complain. Higgins v. Bordages (Tex. Civ. App.) 28 S. W. 350; M. T. Jones Lumber Co. v. Rhoades, 17 Tex. Civ. App. 665, 41 S. W. 102; Slaughter v. City of Dallas (Tex. Civ. App.) 103 S. W. 218, 219; City of San Antonio v. Berry, 92 Tex. 319, 48 S. W. 496; Berry v. City of San Antonio (Tex. Civ. App.) 46 S. W. 273; Elmendorf v. City of San Antonio (Tex. Civ. App.) 223 S. W. 631; Realty Trust Co. v. First Baptist Church (Tex. Civ. App.) 46 S.W.(2d) 1009; City of Galveston v. Heard, 54 Tex. 420.

The statute (Vernon’s Ann. Civ. St. art. 1Ó90) provides that the paving certificate shall state the owner’s name and it is a necessary part thereof. An alteration in this particular would he material and would render the instrument void. Baldwin v. Morton (Tex. Civ. App.) 19, S.W. (2d) 948; Johnson v. Lindsay (Tex. Civ. App.) 30 S.W.(2d) 655; Elmendorf v. City of San Antonio, supra; 2 A. L. R. 790, 791.

The judgment is reversed and the cause remanded.