Cox v. Thurber Brick Co.

HICKMAN, Chief Justice. The city council of Stephenville, by resolution and ordinance, ordered the paving of Devine street, and assessed a certain percentage of the costs thereof against the owners of the abutting lots. Several years prior to the passage of this ordinance, J. A. Johnson, who owned all the south one-half of lot No. 1, block 49, same being more than 400 feet deep, cut it into four lots, numbering them subdivisions 1, 2, 3, and 4, and sold and conveyed subdivisions 1, 2, and 3 to T. C. Primrose, who improved them. ‘ Subdivision 4, retained by Johnson, abutted on Devine street, and was 168½ feet deep. Subdivisions, 1, 2, and 3 did not abut on Devine street. In the ordinance the sum of $388.10 was assessed against Johnson, and against property therein described as follows: “South one half of Lot No. 1, Block 49, City Addition to the city of Stephenville, fronting 112.1 feet on the south side of Devine Street, and against J. A. Johnson, the owner of said property.” After the enactment of the ordinance, Johnson sold subdivision 4 to the plaintiff in error Jess Cox, who, as a part of the consideration therefor, agreed to pay for the paving in front of same. Thereafter, he did make a payment thereon. The defendant in error, as owner by assignment of the paving certificate, instituted this suit against Johnson for the balance due thereon, and against Johnson and Cox for a foreclosure of its lien. Johnson filed a cross-action against his codefendant, Cox, in which he prayed for judgment over against him for any and all sums of money which he might be adjudged to pay defendant in error. In the trial before the court without a jury, personal judgment was rendered against Johnson and a foreclosure of the assessment lien was decreed as against both Johnson and Cox. On Johnson’s cross-action against Cox, it was adjudged that he have and recover all sums of money which he might be required to pay under the judgment rendered against him. From this judgment Jess Cox prosecutes error. His brief is devoted to a discussion of propositions which challenge the validity of the original lien as against Johnson. In general, the theory is that the assessment was void, because it was made against all of the south one-half of lot 1, when, in fact, Johnson at that time owned only a part thereof. The questions presented are interesting, but, in the state of the record as it comes to us, they are academic. He brings to this court a transcript containing this unchallenged finding of fact: “I further find that it was part of the consideration in the sale of the land from Johnson to Cox that Cox should pay for the paving in front of said premises.” Johnson is not before this court complaining of the judgment, and, as noted, the only assignments briefed by Cox are those questioning the validity of the lien attempted to be fixed against the land in the hands of Johnson. Since Cox recognized the validity of this lien by assuming to discharge same as a part of the consideration for the purchase of the land, it is valid as to him, regardless of any alleged defects in its creation. Rice Stix Dry Goods Co. v. First Nat. Bank (Tex. Com. App.) 231 S. W. 386; Wooten Motor *851 Co. v. First Bank of Swenson (Tex. Com. App.) 281 S. W. 196; McMullan v. San Antonio Joint Stock Land Bank (Tex. Civ. App.) 78 S. W.(2d) 669. The judgment of the trial court is affirmed.