On Motion for Rehearing. We are of the opinion that article 5695, Vernon's Sayles' Tex.Civ.Stats. as amended by the 33d Leg. 1913, First Called Sess. p. 39, does not affect the question of limitation involved in this suit. In the first place, the caption of the amended article precludes the idea that such was the purpose of the Legislature. Said caption reads as follows:
"An act to amend article 5695, Revised Civil Statutes of Texas, 1911, as amended by chapter 123, Acts of the Thirty-Third Legislature, relating to the renewal and extension of liens that are secured by deeds of trust, mortgages or original vendor's lien on real estate, and providing that said article shall hereafter read as follows, and declaring an emergency."
Three classes of liens are mentioned, to wit, deeds of trust liens, mortgage liens, and vendors' liens. Certainly the character of lien here sought to be fixed cannot be held to come within any one of these classes. It is a statutory lien and in the nature of a tax lien, for the municipality's power of assessment is based upon the theory of benefits conferred upon the property assessed. 1 Page Jones on Taxation by Assessment, P. 16; 37 Cyc. 712, 713. Since no purpose is expressed in the caption of the above bill to extend liens other than those mentioned, a construction of the act which would seek to have it include liens other than those mentioned would be violative of article 3, § 35, of the state Constitution. In the second place, article 5695, before amendment and since, refers to the debts mentioned "in either (emphasis ours) of the foregoing articles," etc. Strictly speaking, "either" refers to one of two things mentioned. Standard Dict. The two foregoing articles, to wit, articles 5693 and 5694, refer to and treat of deeds of trust or mortgage liens and vendors' liens. Therefore it may be reasonably said that the intention of the Legislature was to include in the purport and operation of the amended article only the classes of liens mentioned in articles 5693 and 5694. It further appears that said two last mentioned articles refer to causes of action against which the four-year statute of limitation is a bar. Not the two years statute. It has been held as to an assessment lien like this that the two-year statute applies. O'Connor v. Koch, 9 Tex. Civ. App. 586, 29 S.W. 400; Glover v. Storrie, 43 S.W. 1035; Beaumont v. Russell, 51 Tex. Civ. App. 351, 112 S.W. 950; Tex. Bith. Co. v. Henry, 197 S.W. 221. Hence we are of the opinion that article 5695, as amended by the Thirty-Third Legislature will not operate to extend the lien in this case. Nothing said in Denman v. Savings Association (No. 8744) 200 S.W. 1109, recently decided by this court, not yet officially published, was intended to express any views in conflict with the conclusion set forth hereinabove.
It is further claimed that we erred in holding that appellant's cause of action was barred, because the record does not include the original petitions filed in the two suits which were later consolidated, and that there is no evidence as to when these suits were filed. The transcript contains an agreement that only the amended petitions and answers shall be included. In plaintiff's motion to withdraw its announcement of ready and postpone the hearing it is stated that "suit was instituted February 19, 1915." The certificates were dated November 26, 1912. One installment was due 30 days thereafter, which was the installment claimed to have been paid in February, after maturity, and the default in which payment upon maturity set in motion limitation.
It is insisted that the certificate here declared on contains stipulations, and the charter of Ft. Worth contains provisions inconsistent with the conclusion that it was intended that upon nonpayment at maturity of any installment the entire debt should become due. We considered these provisions and stipulations on original hearing, and concluded that in the face of the positive stipulation in the certificate contained, based on the charter provision to the same effect, we were not authorized in concluding that such stipulation did not require the maturity of all unpaid installments upon default in payment of any one. We were further of the opinion that, merely because the decision in Building Loan Ass'n v. Stewart, 94 Tex. 441,61 S.W. 386, 86 Am. St. Rep. 864, cited in our opinion, was predicated upon a stipulation in a contract prepared by the party which sought to evade the running of the statute did not justify us in distinguishing this case from that.
Appellant's counsel calls our attention to language contained in our original opinion which he feels may, unintentionally on our part, be construed by some as an implied criticism of counsel for one or both parties. In using the language there was, of course, no such intention, for every member of this court has the utmost confidence in the personal honor and professional integrity of counsel for both parties. But for fear that the expression used may convey an unintended suggestion, we will have withdrawn from the published opinion the language to which our attention is called. We have carefully considered appellant's somewhat lengthy motion, and the able insistent argument thereon, yet we do not find ourselves able to disturb the judgment rendered. The motion for rehearing is overruled.
Motion overruled. *Page 90