Lippencott v. York, 86 Tex. 276, 24 S. W. 275; settled against appellant's contention, it follows that the judgment of the court below must be affirmed, and it has been so ordered. Affirmed. CITY OF FT. WORTH, for Use of ROACH- (Court of Civil Appeals of Texas. Ft. Worth. 837(1)-CONTINUANCE 47-MATTERS REVIEWABLE-AFFIDAVITS. "A husband and wife, ** desiring to make certain improvements upon their homestead, applied to a party for the loan of money for that purpose, offering to secure the debt by a lien on the homestead, and the party, declining to make the loan in that way, but agreed with them that if they would have the work done, and a mechanic's lien fixed on the property that he would take up the debt and lien, and extend the time of payment for five years, and accordingly the husband and wife arranged 1. APPEAL AND ERROR with a contractor, by a contract in writing duly executed, who erected the improvements and by agreement between the contractor and the husband and wife a mechanic's lien was duly [executed and] fixed upon the homestead; and the contractor, while the mechanic's lien was in force, assigned the debt, together with the lien, to such party first mentioned, and the husband and wife executed to such assignee new notes, extending the original debt and lien five years, and a deed of trust upon the homestead to secure them, such deed of trust expressing the original lien, and being properly executed with privy acknowledgment by the wife." It was held by the court that the deed of trust given under the above state of facts was a valid lien upon the homestead, and in passing said the Constitution of the state provides: "No mortgage, trust deed, or other lien on the homestead shall ever be valid except for the purchase money therefor or improvements made thereon, as hereinbefore provided, whether such mortgage, or trust deed, or other lien shall have, been created by the husband alone or together with his wife. Constitution, art. 16, § 50. This section of the Constitution, while it operates as a restriction on the power of a husband and wife to impose charges upon the homestead, recognizes their power to do this by mortgage, trust deed, or other lien to secure payment for work or labor used in constructing improvements upon it." The court then takes up the distinction between statutory and contract liens, and then states: "The one can be enforced only through the judgment of a court foreclosing the lien and ordering the sale of the property. Act April 5, 1889 (General Laws, p. 113). The other may be thus enforced, or it may be enforced in the manner provided by the contract. The lien in the one case would cease to be operative, as the law was, if suit was not brought to enforce it within twelve months after it is fixed, although the debt secured by it was still valid and might be enforced through a personal judgment. General Laws 1889, p. 114. The lien created by contract, however, may be enforced so long as the debt it was given to secure exists, unless limitation be pleaded; and that the debt may be thus barred would furnish no obstacle to its collection by sale of the property under a power given in the instrument creating the lien." Section 10 of the act of 1889, construed by the court in the Lippencott Case, is now article 5630 of the Revised Statutes, cited by appellant. The remaining assignments of error presented in appellant's brief only raise in another form the identical question presented by the first assignment. This question being Affidavit used in answer to a motion to postpone a hearing may be considered by the trial court, and the appellate court may look to the supporting affidavits to determine whether the trial court erred in overruling the motion. 2. APPEAL AND ERROR OF FACT-PRESUMPTIONS. 931(4) FINDINGS In overruling a plaintiff's motion to withdraw announcement of ready for trial, the court must be presumed to have found in favor of defendant's contention as contained in his affidavit in answer thereto. 3. LIMITATION OF ACTIONS 51(2)-DEFAULT IN INSTALLMENT-ACCRUAL OF ACTION. Where paving certificate payable in installments, and city charter, provide that all installments shall become due on default of one installment, where one installment is in default, but is paid, limitations start to run as to the others from the default. 4. LIMITATION OF ACTIONS 180(2), 183(1)— PLEADING. No special form is prescribed for a plea of limitations, and such defense may be made by plea, or, in case the petition on its face discloses the accrual of the statutory period, by special exception. 5. LIMITATION OF ACTIONS 185-PLEADING -SUFFICIENCY. A plea that plaintiff's cause of action, if any, having accrued more than two years before suit. and defendant pleads the two-year statute of limitations, was good as against a general demurrer, and sufficient basis for evidence of failure on defendant's part to pay an installment until it was in default, on a paving certificate which became wholly due on default in payment of one installment. 6. CONTINUANCE 29-SURPRISE. A litigant must be prepared to prove such 8. LIMITATION OF ACTIONS 13-ESTOPPEL 9. APPEAL AND ERROR 966(2) OVERRUL- Where the affidavits of the very witnesses relied on by a party to show that defendant was 519(1) estopped to set up the statutes of limitations were meant. 11. APPEAL AND ERROR 671(2) - MATTERS REVIEWABLE-RECORD. Although record does not contain original petitions in consolidated actions, where transcript contains agreement that only the amended petitions and answers shall be included, and plaintiff's motion to withdraw its announcement of ready for trial stated "suit was instituted February 19, 1915," it cannot be said there was not sufficient showing of the time of commencement of the action to warrant the appellate court in holding the action barred by limita tions. itation filed by him, whereupon plaintiff's counsel requested time for the preparation of a brief upon the law questions involved in said matter, and such time was accordingly granted, and decision was held pending the submission and consideration of such brief. Be it remembered that thereafter, on the 20th day of November, 1916, the plaintiff in said causes filed his certain motion to withdraw his announcement of ready for trial and to postpone the hearing of said case upon various grounds fully set forth in said motion, accompanied by the affidavit of J. W. Morris and Charles Kassel, and on the same date the plaintiff filed its certain motion for tition in reply to the pleadings of defendant upleave to file nunc pro tune its supplemental peon various grounds more fully set forth in said motion, and tendered in connection with said motion, and attached as an exhibit thereto the supplemental petition in question, and at the same time submitted to the court its brief referred to in earlier paragraph of this judgment. Thereupon, on this the 29th day of November, 1916, the said respective motions came on for hearing as preliminary to a final decision by the court of this cause, and thereupon plaintiff and defendant appeared by their respective attorneys, and the plaintiff tendered to the court in connection with its motion to withdraw its announcement of ready for trial and to postpone the hearing of the case the additional affidavits of R. E. Brown and Charles Kassel, filed on the 27th day of November, 1916. Thereupon, after a full consideration of said respective motions, it is the judgment of the court that both of said motions should be overruled, and the same is accordingly done, to which action of the court the plaintiff excepted in open court, and tendered his respective bills of exception. Thereupon the court heard further argument with regard to the decision of the case upon its merits, and, after being fully advised, is of the opinion that the plaintiff would be entitled to recover as prayed for but for defendant's plea of limitation as made in his first amended origifounded in law and in fact; and it is therefore nal answer, which plea is sufficient and well ordered, adjudged, and decreed that said plea of limitation be sustained, and that the defendant go hence without day in each of said causes, and recover of plaintiff therein all costs in this becertif-half by him expended, to which judgment of the court the plaintiff in open court excepted and gave notice of appeal." Appeal from District Court, Tarrant County; Ben M. Terrell, Judge. Action by the City of Ft. Worth, for the use of the Roach-Manigan Paving Company, against Sam Rosen. Judgment for defendant, and plaintiff appeals. Affirmed. Chas. Kassel, of Ft. Worth, for appellant. Flournoy, Smith & Storer, of Ft. Worth, for appellee. From this judgment, the plaintiff has appealed. installment, due December 26, 1912, was paid [1, 2] The evidence showed that the first by check of appellee, dated March 1, 1913, but that the check was actually delivered to BUCK, J. This is an appeal from a judgment of the district court sustaining a plea of limitation to the cause of action set forth in plaintiff's petition. City of Ft. Worth, for the use of Roach-Manigan Paving Company, sued Sam Rosen on two paving certificates issued by the city of Ft. Worth on November 26, 1912, and carrying a lien against certain real estate described in said certificates. It appeared from the petition that the amount assessed was payable in three equal installments, the first due in thirty days after date of the certificates, the second in one year, and the third in two years after date, and that each certificate contained a provision that failure to pay any install- the agent of Roach-Manigan Paving Compament when due should mature all deferred payments, and it appeared from the petition that the first installment had been paid. Defendant, among other defenses, set up a formal plea of the two-year statute of limitation. The cause was tried before the court without the aid of a jury, and judgment was rendered for the defendant on his plea of limitation. The cause was tried on October 3, 1916, but judgment was not rendered until November 29, 1916. The judgment recites as follows: "Thereupon the respective parties read their pleadings and offered their evidence, and it was the judgment of the court, after due consideration, that the defendant was entitled to a judgment in his favor on the plea of the statute of lim ny prior thereto, and passed through the Clearing House at Ft. Worth on February 15, 1913. There seems to be no evidence in the statement or facts as to when this check was delivered or issued. There is an affidavit of Sam Rosen, filed in support of defendant's answer to plaintiff's motion to withdraw announcement of ready and postpone the trial of the case which motion was filed November 20, 1916, and in this affidavit Rosen stated that the check was given by him on February 12, 1913, and was postdated to March 1st thereafter, and that he (Rosen) requested, and the agent of the paving company agreed, that said check should not be presented for payment before its due date, but that the paving For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "But where a sum is payable by installments, and there is a stipulation that, upon default, all shall become due, the statute runs as to the whole demand from the time of default made"citing the leading English case of Hemp v. Garland, 3 G. Dav. 402, 4 Q. B. 519. In 1 Wood on Lim. (2d Ed.) p. 360, § 126, the author states the rule to be as laid down in Hemp v. Garland, supra, but rather protests against the soundness thereof. The text says: "It might be argued, however, that this [the holding in Hemp v. Garland] is at variance with the well-known rule that no one is obliged to take advantage of a forfeiture, a point which does not appear to have been noticed in the argument, and which is entitled to considerable weight in such cases. It would seem, upon a the debtor by his default put himself in a posifair application of the last-named rule, that tion where his creditor might, if he elected to do so, take the whole debt as due; but it seems somewhat unreasonable to say that he thereby compels the creditor to treat the whole debt as due, so that the statute is, even against the creditor's will, put in motion to defeat his claim. The doctrine of the case referred to would also held that they are odious in law"-citing Banseem to favor forfeitures, whereas, it is usually ning on Lim. 26. company failed to carry out the agreement, about which there has been some contrariety 1 and that said check was paid through the of opinion and conflict of authority. In AnClearing House on February 15, 1913. It will gell on Limitations (6th Ed.) p. 103, § 111, it be noted that whether the payment be held is said: to have been made either on February 12th, when the affidavit of Rosen states the check was issued, or on February 15th, when it passed through the Clearing House, or on March 1st, the date of the check, that such payment was made after maturity of the first certificate. But appellant argues that neither the trial court nor this court can look to the affidavit of Rosen, in the connection in which it was used, as evidence of the date when the check was in fact issued and delivered, and that therefore, the record being silent as to the date of delivery, the presumption obtains that payment was made at the maturity of the first installment, and that there was no default shown in the payment of the first installment. We are of the opinion that this contention is more ingenious than sound. The affidavit of Rosen, in which the statements with reference to the date of the issuance of the check were contained, was attached to and used in support of the controverting answer of defendant to plaintiff's motion to withdraw its announcement of ready, and to postpone the hearing. In this proceeding the trial court had the right to consider the affidavits pro and con. Therefore, in determining whether the trial court erred in overruling plaintiff's motion, this court may properly look to the supporting affidavits used by each party. One of the material questions of fact to be passed upon by the trial court in the determination of this motion was, Was the payment of the first certificate made after maturity, so as to constitute a default? Hence the date of the issuance of this check became an important issue. In overruling plaintiff's motion the court must be presumed to have found in favor of defendant's contention as contained in his affidavit. While there are some 21 assignments in appellant's brief, yet we believe the material questions involved may be limited to 3 to wit: (1) Is the provision contained in the charter of the city, and also in the certificates sued on, to the effect that a failure to pay any installment when due shall mature all installments unpaid, binding alike on the creditor, or holder of the certificate, and the debtor? Or is this stipulation one entirely for the benefit of the creditor, and one that may by him be waived without reference to the consent or concurrence of the debtor? (2) Was defendant's plea of limitation sufficiently full, in the absence of a special exception, to warrant evidence of a default in the first payment, and the consequent acceleration of the period of limitation as to the deferred payments to establish said plea? (3) Did the trial court err in overruling plaintiff's motion to withdraw announcement of ready and to postpone the hearing of the cause? In Gilsonite Const. Co. v. Coal Co., 205 Mo. 49, 103 S. W. 93, the Supreme Court of Missouri, in a case involving a paving certificate, decided that the period of limitation as to subsequent installments was not shortened, against the creditor's will, by reason of the default in an earlier installment. holding in this case, while broad in terms, is somewhat restricted as an authority by reason of the fact that the Kansas City charter, there under consideration, contained provisions not found in the Ft. Worth charter. See, also, Burnes v. Ballinger, 76 Mo. App. 58. But our own Supreme Court on certified question in San Antonio Real Estate B. & L. Ass'n v. Stewart, 94 Tex. 441, 61 S. W. 386, 86 Am. St. Rep. 864, after discussing the question fully, and citing authorities supporting both views, has adopted the rule of construction laid down in Hemp v. Garland. Hence, irrespective of what our opinion might be as to the law were the question an open one, we are bound by the announcement of the law as there presented. Therefore we Therefore we must answer the first question hereinabove mooted in the affirmative; i. e., that the stipulation in the certificate and charter mentioned is binding upon the creditor, without the privilege to him of an election. We will next consider the question of the sufficiency of defendant's plea of limitation to authorize the proof of a default in the first installment (though subsequently paid), and whether the judgment sustaining such plea on such proof was authorized. No question was. raised below or urged here that the two-year statute of limitation applies to a cause of ac- ed by a municipal corporation for paving, where no contractual obligation is alleged on the part of the defendant to pay the amount specified in the certificate. The authorities hold that said statute does apply. O'Connor v. Koch et al., 9 Tex. Civ. App. 586, 29 S. W. 400; Glover v. Storrie, 18 Tex. Civ. App. 6, 43 S. W. 1035; Tex. Bith. Co. v. Henry, 197 S. W. 221. The plea in the instant case is as follows: "Defendant further alleges that plaintiff's debt, if any they have, against this defendant for said alleged paving of Twenty-First street is barred by the two-year statutes of limitation, plaintiff's said cause of action, if any they have or had, having accrued more than two years before this suit was filed, and defendant pleads the two-year statute of limitation in bar of any recovery therein." [4] But no action of the court is here shown to have been invoked, and no actual request for withdrawal of announcement of ready and to postpone, on the ground of surprise, was made. The only request was that time be allowed plaintiff's counsel to prepare a brief of authorities. Indeed, the claim of surprise and the request for postponement seem to have been urged only after the diligent efforts of able counsel for appellant failed to find legal authority, satisfactory even to himself, to present to trial court, to sustain the contention that under the facts in evidence judgment should be rendered for the plaintiff. No special form is prescribed under the law for a plea of limitation. Such a defense may be made by plea, or, in case the petition on its face discloses the accrual of the statutory period, by special exception. Hopkins v. Wright, 17 Tex. 30, 35; Hudson V. Wheeler, 34 Tex. 356; Alston v. Richardson, 51 Tex. 1. See form of plea suggested in Sayles' Texas Pleading with Forms (1893) § 263a, p. 358. a [5] We are of the opinion that, as against general demurrer only, the plea filed by defendant below was sufficient as a basis for limitation, and that such evidence of the failure on defendant's part to pay the first installment at maturity was admissible as tending to establish such plea and defense. Evans v. Jackson, 41 Tex. Civ. App. 277, 92 S. W. 47. We have examined the cases of Oswald v. Giles, 178 S. W. 677, Glasscock v. Hamilton, 62 Tex. 143, Cunningham v. Frandtzen, 26 Tex. 35, and other cases cited by appellant; but we are of the opinion that the conclusion reached by us upon this issue is not by conflict with the holding in these cases. No exception was leveled at the form of this plea; nor was any objection made to the admission of the evidence as to the time of payment of the first installment. In fact appellant's counsel frankly admits in his brief that he did not anticipate, until the argument to that effect had been made by counsel for appellee, that the contention would be made that the payment of the first installment after maturity established a default and put into operation the statute of limitation. No request was made at the time to delay the hearing, on the ground of surprise. The first time such request was formally made was some six or seven weeks thereafter, to wit, November 20, 1916, when plaintiff's motion for leave to withdraw announcement of ready and to postpone the hearing was filed. It is true that in appellant's bill of exception No. 1 it is stated: "That on the 3d day of October, 1916, the above cause [there being originally two suits which were consolidated] came on for hearing, a jury [6, 7] Was plaintiff entitled, as a matter having been waived and all matters of fact and of law, at the time his motion was filed, and of law having been agreed by the parties to be submitted to the decision of the court, and on the ground of surprise, to withdraw his thereupon came the plaintiff and defendant by announcement of ready and have the cause their respective attorneys and announced ready postponed? A litigant must be prepared to for trial and the pleadings were read and the prove such issues of fact as he might reaevidence submitted. At the conclusion of the evidence counsel for plaintiff stated to the court sonably foresee from the nature of the case, that he did not know that the defendant expect- and, in such cases, cannot withdraw his aned to contend to the first installment of the as-nouncement and obtain a continuance, exsessment sued upon had been paid after its maturity, and that by reason thereof the entire assessment became due so as to require suit thereon within two years after the maturity of the first installment, but stated that, notwithstanding this, and under the evidence actually developed, he believed the plaintiff entitled to a judgment, and asked for time in which to prepare and file a brief for the consideration of the court showing that limitation did not apply, which leave was granted. Some two or three days thereafter counsel for plaintiff stated to the court that after the trial of the case he had discovered upon the certificates of special assessment an indorsement extending the maturity of which he had not been aware at the time of the trial, and with regard to which it would be necessary to make investigation, and that he might find it necessary to file a motion for leave to withdraw his announcement of ready for trial in the cases and ask for a postponement of the hearing thereof, but that even in this event he would present none the less on the main case." cept where the issue which arises is one or his counsel made any positive statement, affidavit of J. Walter Morris attached to plainor committed any affirmative act fending to tiff's motion, affiant states that he was in cause plaintiff or its counsel to be led into the employ of the paving company, and that the belief that the defendant would not take he talked with Mr. Rosen several times; he advantage of any defensive proof, which did not remember whether the first convermight be made under this plea of limitation. In the affidavit of Charles Kassel, counsel for appellant, in support of its motion, the following language is used: sation was before or after the first installment was due; that Mr. Rosen complained that the paving had damaged his property instead of helping it, and that some one had "Mr. Storer [counsel for defendant below] then sent him a deed to a strip of land abutting told me that they also claimed the suit was bar- on the street where the paving had been red by limitation, and I asked how he arrived done, and that he had placed it on the recat that, in view of the fact that I was only suing ord without thinking that this would make on the second and third installments, and suit was brought within two years from the time the him liable for the paving; that the Belt second installment became due; and he said I Railway Company had moved its tracks had all the papers, and that he didn't know from the middle of the street in front of his when the suit was filed, but that if I would investigate I would probably find that I was out property, and thereby caused an undue pro of court on limitation. I looked upon the clerk's rata of the paving to be assessed against file docket later, and saw that I had brought him and his property; that the defendant my suit within two years from the time the second installment was due, and dismissed the asked him not to bring any suit until he idea of limitation applying to the case from my could consult with his attorneys and have mind. I did not know until the defendant testi- them investigate, etc.; that finally Rosén fied that he claimed to have made his first pay-gave a definite date when he would give an ment after it was due. *** I did not know or have the slightest information until the testimony of defendant came out on the stand that it would be claimed by him that the payment in question was made after it became due, and that by reason thereof the entire assessment fell due, and I did not plead surprise when this came out and ask leave to withdraw my announcement of ready, because I did not know what good could be accomplished by such a course as the old Roach-Manigan Company was dispersed, its employés scattered, its records gone, and all I had available was the information I could secure from W. C. Pope. After the matter was taken under advisement by the court, it occurred to me that defendant might have been absent from the state during the period for a sufficient length of time to destroy the plea of limitation, if it was otherwise good.' answer on the subject; that on that date he (Rosen) told Morris that his attorneys had passed on the matter for him, and advised him not to pay, and accordingly the paving company was at liberty to bring the suit any time it saw fit; that soon thereafter the suit was placed in the hands of the company's attorney. [8, 9] It would appear from the record that the most that can be said is that the af fidavits supporting the motion to withdraw were in the direction of establishing an estoppel against the defendant to plead the statute of limitation. That parties by their acts, not evidenced by any writing, may There was attached also to plaintiff's mo- estop themselves from setting up the bar of tion the affidavit of R. E. Brown, which the statutes is well established under the was, in brief, to the effect that during 1912, authorities. B. & L. Asso. v. Stewart, 27 he was in the employ of the paving company Tex. Civ. App. 299, 65 S. W. 665, writ of erand performing the duties of assistant book- ror denied. 17 R. C. L. § 240, p. 881 et seq., keeper and cashier and assisting in the col- but the affidavits of the very witnesses relections; that he talked with appellee more lied on by the plaintiff below to establish the than once over the phone after the payment fact showing an estoppel were considered of the first installment, and that the latter by the trial court in entering judgment, and told him he wanted to see his attorneys first, we do not feel justified in holding as a matand that the paving company delayed put-ter of law that the trial court abused his ting the matter into the hands of its attor- discretion in overruling the motion to withneys for suit in order that the defendant draw and postpone or the motion for leave might see his attorneys; that later defend- to file an amended petition setting up the ant came into the paving company's office plea of estoppel, etc. This conclusion on our and told affiant to go ahead and sue. Coun- part is fortified by the fact that these quessel for appellee filed his affidavit in connec- tions of fact raised by the motion and antion with appellant's motion to withdraw an- swer and the affidavits attached to the renouncement of ready, and also the affidavit of spective pleadings were considered and deappellee and his bookkeeper S. Kaufman, and termined by the tribunal to which the plainthe affidavit of defendant states that no tiff and defendant elected to submit matters one representing the plaintiff came to him of fact as well as of law, a jury not having after he paid the first installment and re- been requested at any stage of the proceedquested him to make payment of balance ings. due; that he never stated to any one that he wanted to consult his attorneys in regard to the matter, and, in fact, did not consult We believe what we have said hereinabove sufficiently disposes of all of the assignments, without taking them up and discussing them |