L. E. Whitham & Co. v. Stout (41 S.W.2d 317, 1931)

DUNKLIN, J.

L. E. Whitham & Company did certain street improvements in the city of Wichita Falls under contract with that city, and the city passed an ordinance assessing abutting property with a lien to pay for such improvements, all in accordance with the provisions of the city charter. Lot 10, block 15, Scotland addition to the city of Wichita Falls, was one of those abutting lots, and W. R. Stout owned it at the time of the passage of the ordinance fixing a lien on abutting property. The assessment ordinance was passed on July 5, 1926, and Stout sold the property on July 14, 1926. On April 12, 1926, which was prior to the passage of the ordinance by the city, W. R. Stout executed a deed of trust upon the property to secure the payment of a promissory note in the sum of $2,400 given to the North Texas Building & Loan Association for material to build a bouse on tbe property above mentioned, and with that material he built a residence, on it, which was finished about the time the assessment ordinance was adopted by the city.

L. E. Whitham & Company instituted this suit for personal judgment against Stout for the debt and for foreclosure of the lien for the street improvement made by him. W. R. Stout, the North Texas Building & Loan Association, and E. G. Swanson were all made parties defendants, but the North Texas Building & Loan Association was the only defendant who filed an answer. One of the defenses presented in that answer was that the property in controversy was the homestead of W. R. Stout at the time the assessment ordinance was passed and at the time the plaintiff did the street improvement work, and therefore it was exempt from the lien claimed by the plaintiff. There were further allegations in defendant’s answer that it had foreclosed its lien and that defendant E. G. Swanson had bought at that foreclosure and now holds title to the property.

The trial of the case was before the court without a jury, and judgment was rendered awarding plaintiff a recovery against the defendant W. R. Stout for the debt evidenced by the paving certificate on which plaintiff’s suit was based, but denying plaintiff a foreclosure on the lot because the same was the homestead of W. R. Stout at the time the assessment ordinance was passed, and the work done by plaintiff thereunder, and that therefore the property was exempt and the alleged