Citations
- 119 S.W.2d 167
Full opinion text
NEALON, Chief Justice.
July 16, 1926, W. E. Painter and wife executed and delivered a deed of trust conveying Lot 13, in Block B/2170 in the City of Dallas to secure the Federal Mortgage Company in the payment of their note for $5,500, due in three installments, two of said installments being in the sum of $500 each, due, respectively, in one and two years after the date of the note, and one being in the sum of $4,500, due in five years. By mesne conveyances the property passed to R. L. Wheelock, one of appellees. Mr. Wheelock’s deed, which was dated March 1, 1927, recited, that the lot was taken “subject to all and any indebtedness now due and owing on said property.” No specific indebtedness was identified in the deed, but the debt to the Federal Mortgage Company was the only indebtedness secured by a lien upon the property. In April, 1928, the City of Dallas levied an assessment of $642.85 for paving the street upon which the lot abuts and fixed a lien upon the lot and a personal liability against appellee Wheelock. An assessment certificate was issued. The assessment was payable in six equal annual installments, four of which were paid by Wheelock during the time that he owned the property. He also paid the two $500 installments upon the note. In 1932 the deed of trust was foreclosed by a sale made by a duly constituted trustee, and the property was bought at the trustee’s sale by appellant for a consideration of $3,000, which was credited upon the note, appellant at the same time taking the deed of trust and the note. The parties have agreed that the special assessment lien was a prior lien as compared with the deed of trust lien which was foreclosed.
The City of Dallas filed suit for the use and benefit of the present owner of the special assessment certificate and straght foreclosure thereof and a personal judgment against Wheelock for the amount of the assessment, together with, interest and attorney’s fees. Appellant and Wheelock were made parties defendant and filed answers. Appellant pleaded that Wheelock, in taking the property subject to the indebtedness, did, as a matter of law, bind himself “that the holder of said indebtedness would obtain its full indebtedness out of said property before said property should be made to respond to the obligation or liability of the said Wheelock,” and sought to have the court require plaintiff below to resort to the personal liability of Wheelock, who was alleged to be amply solvent, before subjecting the described property to the lien of the special assessment certificate. Wheelock by appropriate pleadings contested appellant’s claim. It was stipulated that Wheelock was solvent and had property situated in Texas subject to execution and free of exemptions and encumbrances of greater value than the amount o.f plaintiff’s debt.
The case was tried to the court, which rendered judgment that the plaintiff, City of Dallas, have judgment against Wheelock for the amount of the balance due