(dissenting).
I respectfully enter my dissent from the acts of the majority of this court in reversing the judgment of the trial court and in here rendering judgment for the appellants.
As shown by the opinion of the majority, the city council of the city of Houston passed an ordinance authorizing the levy of an assessment against lot 1 in block 884, fronting on the street to be paved, and 'against its owner or owners, to pay a proportionate part of the pavement; that thereafter, to wit, on the 23d day of May, 1928, the city council duly levied an assessment against said lot and against Frank O. H. Keelan, Ed. S. Phelps, and Edgar H. Phelps, as owners of said lot, to raise funds to pay for the pavement laid in front of said lot; that on the next day, May 24, 1928, the paving certificate sued upon in this case was issued providing for payment by the owner of said lot of its or his pro rata of the cost of thé improvement made. In the certificate it is recited that each coupon, five in number, is issued by the city of Houston, Tex., against Frank O. H. Keelan, Ed. S. Phelps, and Edgar H. Phelps, owners of the property. Such certificate was issued to San Jacinto Construction Company, or bearer, and was duly transferred by said company to Thurber Brick Company, plaintiff in this suit.
The will of Susan Mitchell provides that in the event Frank C. H. Keelan should die before Mollie Sanders Woods, the title to the lot should pass to the latter. While Frank C. H. Keelan was still living, Mollie Sanders Woods and her husband executed and delivered to Ed. S. Phelps and Edgar H. Phelps their deed purporting to convey to them the lot in question. Such deed was executed and delivered on the 1st day of November, 1926, about three years prior to the death of Frank Keelan, who died August 15, 1929. The proceedings to have the street paved began long before Frank Keelan died, and all proceedings relative to such paving, up to making the levy and assessment above mentioned, substantially complied with the provisions of the law and the charter of the city. So it is apparent that at the time such proceedings began and at all times during such proceedings, including the levying and assessment mentioned and the issuance of the certificate, Frank C. H. Keelan owned the' fee to the lot in question, and so far as the city council knew, might own it for m’any years to come and might continue to own it after the death of Mollie Sanders Woods. It is also apparent that had Mollie Sanders Woods died before Keelan the Phelpses would have gotten no title by virtue of their deed from Mollie Sanders Woods and husband.
No one named in the enabling ordinance in the 'assessment levy nor in the certificate, other than Frank Keelan, had any title to the property at any time during the proceedings mentioned; so it is apparent that no valid personal levy and assessment could have been had against either Ed. S. or Edgar H. Phelps. However, since the two Phelpses became the owners of the title to the property upon the death of Frank Keelan by virtue of their deed from Mollie Sanders Woods and husband, the holder of the certificate was, in the opinion of the writer, entitled to a foreclosure of the lien on the property 'created against it by the levy and 'assessment made against such property and its owner, Frank O. H. Keelan. The mere fact that the Phelpses owned no title to the property at the time all paving proceedings took place, including the levy, assessment, and issuance of the certificate, does not destroy the right of the owner of the certificate to a foreclosure of its lien on the property against the Phelpses, who hold an after-acquired title to the property. The Phelpses occupied the same position as a subsequent purchaser.
In section 6 of an act of the First Called Session of the 40th- Legislature (Acts First Called Session of the 40th Legislature 1927, pp. 489, 491, c. 106 [Vernon’s Ann. Civ. 'St. art. 1105b, § 6]) it is provided as follows: “Any assessments against abutting property shall be a first and prior lien thereon from the date the improvements are ordered, and shall be a personal liability -and charge against the true owners of such property 'at said date, whether named or not. The Governing Body shall have power to canse to be issued in the name of the city assignable certificates in! evidence of assessments levied declaring the lien upon the property and the liability of the true owner or owners thereof whether correctly named or not, and to fix the terms and conditions of such certificates.”
By article 2, section 2, subdivision (b) of the City Charter, it is provided as follows: “The *600City shall have all powers that are or hereafter may be granted to municipalities by the Constitution or laws of Texas; and all such powers, whether expressed or implied, shall be exercised and enforced in the manner prescribed by this Charter, or when not prescribed herein, in such manner as shall be provided by ordinance or resolution of the Council.”
Section 12 of the Charter of the City of Houston reads as follows: “Sec. 12. Passage of Resolution — Notice—The passage by the City Council of a resolution, directing the improvement of any highway, or part thereof, shall operate as notice thereof and of the assessment and lien thereafter fixed upon property abutting said highway, as against all creditors or owners of such property and purchasers thereof, and the lien fixed by said assessment shall, without further proceedings or record, relate back to said resolution and be effective against said purchasers or creditors.”
In view of the fact that at all times the proceedings relative to the pavement of the street were being bad, including the levy of the assessment against the property and its owner and the issuance of the certificate sued on, Frank C. H. Keelan was the true owner of the property, .1 am of opinion that the governing body, the city council, had power to cause to be issued the certificate sued upon and to declare the lien upon the property, and that had Frank Keelan been living at the time of the trial of this suit the court could have correctly rendered personal judgment against him. I also think, under the-provisions of section 12 of the City Charter above quoted, the passage by the city council of the resolution directing the improvement operated as notice thereof and of the assessment and lien thereafter fixed upon the property involved in this suit as against the Phelpses, who became subsequent owners of the property, and that the lien fixed by said levy and assessment did, without further proceedings of record, relate back to said resolution and effect a lien against the property as against the Phelpses which the trial court correctly foreclosed in appellee’s favor.
In the opinion of the majority it is said that it is based upon undisputed evidence, and that upon such evidence a decree should enter here reversing the judgment of the trial court and rendering judgment for appellants. In such opinion it is declared that it is based, in the main, upon these considerations: “No lien for the paving done was valid against the property in the hands of the Phelps-appellants, because they were neither owners thereof nor bad any title thereto, either on the dates the initial assessment and the certificate were issued, or when the cited amendments thereof were acted upon, not having become invested with a title to it until the subsequent death of Frank C. H. Keelan.”
I dissent from such conclusions of the majority, for the reasons I have above expressed.
I think so much of the judgment of the trial court as foreclosed the paving lien against the appellants Phelps should be affirmed.