On Motion for Rehearing.
It is urged that the pleadings' do not authorize the recovery awarded the Whit-ham appellees herein; the particular contention being to the effect that the cause of action asserted by them is alone confined to J. R. Monroe, one of the vendees under Caru-thers, the original grantor of the property. This contention, in effect, was presented in appellant’s original brief under assignments and propositions which we indicated in our original opinion was subject to the objections made thereto by appellees, but it is now contended that in the state of the pleadings the judgment rendered by the court in favor of the appellees is fundamentally erroneous, and that the question is available as such, regardless of any failure to conform to the rules in its presentation.
Notwithstanding our failure to discuss the question in our original opinion, and notwithstanding appellees’ objection to the propositions under which the question was presented, we did, in perhaps a hurried way, examine the pleadings for the purpose of.seeing whether the contention now made was well taken, and after such examination as we made we concluded that the contention should be overruled, and a more careful consideration of the pleadings in considering the motion for rehearing has confirmed our original unexpressed conclusion.
The transcript before us discloses that the trial proceeded upon appellant’s third amended original petition and appellees’ first amended answer and) cross-action; appellant’s first and second original petitions and appellees’ original answer and cross-action not appearing in the record. Nor do we have before us any pleadings on the part of J. R. Monroe, a subvendee of the Oaruthers made a party to the action. In the petition upon which appellant proceeded to trial, he first pleads in the usual form of trespass to try title for the title and possession of the lot in controversy. ■ In a second count appellant urges, in substance, that on the 13th d£y of September, 1919, Ernest W. Corder made, executed, and delivered to J. Oaruthers his four promissory notes for the sum of $700; that said notes for a valuable consideration had been assigned to appellant, together with the vendor’s lien securing the same. The petition further alleges several transfers, assumption of promises, payments, etc., on the part of several subvendees, including J. R. Monroe, and alleges that the notes and liens, if any, against said property now held by the defendants Lillian K. Moore, E. N. AAh, O. H. Reid, W. A. Costley, L. E. Whitham, and R. E. Whitham, are second and inferior liens to plaintiff’s said lien covering said property.
Other allegations, not thought necessary to notice, follow, béing, in substance, a prayer for the recovery of the title and possession of the lot in question, and, in the alternative, “if it be decreed by the court that the plaintiff is not entitled to the judgment sought for herein,” that plaintiff have judgment against E. W. Corder for the debt of $4,000, etc., and “for the foreclosure of his lien on the above-described land and premises against each and all defendants, and that the same be decreed to be sold according to law,” etc.
In the first amended answer of appellees Whitham, it is alleged that, “by leave of the court and of all counsel involved,” they filed “their first amended answer to plaintiffs’ petition, answer to the defendant Lillian K. Moore’s answer and cross-action against the *217defendant J. R. Monroe,” and except generally to the “allegations contained in the plaintiff’s original and amended petitions, as well as to the cross-action, answer, and pleas set up by the said plaintiff, E. W. Marriott, and the defendants Ernest W. Oorder, J. R. Monroe, Lillian K. Moore, E'. N. Ash, J. A. Watkins, O. H. Reid, W. A. Oostley, and any other parties, whether same be plaintiff or defendant, in the matter at bar, and say that the same áre wholly insufficient in law.”
Appellees further generally denied) each and every allegation in the pleadings above mentioned, and say that the same are not true in whole or in part. Then follow a number of special exceptions to the answer of Lillian K. Moore, and allegations that—
“Said defendant Lillian K. Moore and all other defendants and the plaintiff in this case are barred from any defense of invalidity in the proceedings or assessment levied against the defendant J. R. Monroe, and against the property hereinafter described and against the special assessment hereinafter described, and say that said parties are estopped from denying the validity and binding force and effect of the certificate sued on herein by the terms of said article 1015, c. 11, tit. 22, now article 1096, c. 9, tit. 28, of the Revised Statutes of Texas of 1925.”
It is further alleged:
“That said certificate is a valid and binding personal obligation of the defendant J. R. Monroe and a valid binding first and superior lien on the property herein described.”
There were other special denials directed to the answer and cross-action of Lillian K. Moore.
Appellees’ pleading further answered the defendant J. R. Monroe, setting up the charter of the city of'Wichita Palls and the various proceedings resulting in the improvement and assessment, and alleged that the property was then “owned a-nd held of record by the defendant J. R. Monroe,” and that the special assessment was assessed against J. R. Monroe as the then owner of the property. It was further alleged that:
“Said lien created by said certificate and assessment is a first and prior lien upon said premises, prior to all liens claimed, asserted, pleaded, or held by either E. W. Marriott, the plaintiff herein, or by either of the defendants William K. Moore, E. N. Ash, O. H. Reid, W. A. Oostley, or to all other liens, claims, or rights that may be asserted or claimed by other parties against said premises; that all of the latter mentioned liens, regardless of their amount, date of execution, date of filing, type, assertion as to priority, manner in which same were obtained, assumption, or otherwise, are second and inferior liens to the lien created /or the said L. E. Whitham & Oo., by haid city, by virtue of said assessment and the hen, claim, and indebtedness herein allegfed by the said certificate holders.”
The prayer was that the premises being considered, the Whithams—
“be declared and adjudged to have a valid and binding first and superior lien upon the property herein described, and a valid and binding personal obligation of the defendant J. R. Monroe; said lien to be declared and adjudged superior to all other hens or claims here pleaded or asserted, and further that they have judgment against the said defendant J. R. Monroe, for the said assessment, together with all accrued interest and reasonable fees for said attorneys.”
We think it apparent from the statement of the pleadings as above given, that there is no merit in appellant’s contention, to the effect that the record fails to disclose that the cross-action, as it is termed, of the ap-pellees Whithams, had been served upon the appellant, and that said answer was addressed for.relief against J. R. Monroe only. It seems evident that all parties were before the court; that appellant distinctly had notice of and answered appellees’ contentions by asserting that the vendor’s lien claimed by appellant was superior to that claimed by the appellees. The index to the transcript fails to disclose that there was any exception in behalf of appellant to the evidence offered in support of appellees’ claim, and, as it appears to us, the issues involved in appellees’ right of recovery as against appellant were plainly before the court. Indeed, it might be said that the judgment is supportable in the absence of any special plea of their lien on the part of appellees. Appellant sued for and was permitted a recovery of the title to the land in question. The whole included all interests therein, and the court, in adjudging the relief prayed for in that respect, would seem to have been authorized to only grant such part of the whole as the evidence disclosed appellant was entitled to.
As to the further contentions made in the motion, assailing the validity of the assessment lien and operative force of the charter and laws relating thereto, we adhere to the views briefly expressed in our original opinion, and conclude, on the whole, that the motion for rehearing should be overruled.