Devine v. McCulloch

• Decision Date: 01 January 1855
• Citation: 15 Tex. 488
• Parties: THOMAS J. DEVINE AND OTHERS v. SAMUEL MCCULLOCH, JR.
• Court: Texas Supreme Court

15 Tex. 488

THOMAS J. DEVINE AND OTHERS

v.SAMUEL MCCULLOCH, JR.

Supreme Court of Texas.

1855.

Quære, whether the owners of lands sold for taxes after the act of 1850, for taxes assessed for years previous to that year, had two years to redeem, where the land was purchased by a private individual, and whether the act of February 11, 1850, “supplementary to an act to restore lands sold for taxes and purchased by the state, to the former owners,” applies to lands purchased by individuals?

Where a tax deed was admitted in evidence without objection, without evidence of the facts necessary to give the assessor and collector power to sell, and the court charged the jury that the tax deed was prima facie evidence that all the requirements of the law had been complied with, but the jury found against such title, under the charge of the court, on another point; a question being made in this court whether the finding on such other point could be sustained, the court said it was not necessary to decide the question, because the party did not prove the facts necessary to give the assessor and collector power to sell, and affirmed the judgment. [13 Tex. 298;23 Tex. 36;26 Tex. 48, 296.]

Appeal from Bexar. This was a case of trespass to try title, brought by appellee against appellants, to recover the possession of certain land on the Medina river. Appellee had located said land with his own certificate in 1838 (said certificate was a donation for a wound received at Goliad), and procured a patent on the 14th December, 1850. Appellants claimed the land by virtue of sheriff's deed upon a judgment rendered in Jackson county against Samuel McCulloch, Sr., appellee's father.

The appellants endeavored to show collusion between the father and son in changing certificates, but failed to prove it.

The appellants also claimed a part of the land by virtue of a tax title, dated 7th day of September, 1850. The sale was made for the taxes for 1849, and was made on the 20th August, 1850. Appellee made a tender for redemption on the 17th day of July, 1852.

The tax deed was admitted in evidence without objection. The court instructed the jury, as to the tax title, as follows:

A tax deed made under the act of 1850 is prima facie evidence that all the requirements of the law have been complied with by the assessor and collector of taxes.

A tender of double the amount of the tax assessed, together with the costs of sale, entitled the party to a relinquishment of the tax deed.

The defendants requested the following charge, which was refused: The act of 11th February, 1850, “to provide for the assessment and collection of taxes,” does not repeal the former laws providing for the assessment and collection of taxes, so far as relates to assessments made for any year anterior to said year 1850; and a party whose land was sold in August, 1850, for taxes due upon assessment made for any year anterior to 1850, had no right to redeem said land from and after the first day of January, 1852.

I. A. & G. W. Paschal and Stribling, for appellants.

Denison and Van Derlip, for appellee.

WHEELER, J.

In the argument upon the application for a rehearing, and upon the rehearing, it has been insisted on behalf of the appellee, with much apparent force, that the supplemental act of the 11th of February, 1850 (Hart. Dig. p. 954), construed in reference to its title, and the 24th section of article 7 of the constitution, must be held to apply only to the redemption of “lands sold for taxes and purchased by the state” (Id., and act of January 16, 1850, p. 953; see the title of this and the supplemental act, p. 954), and that the exception and reservation in the repealing clause of the general law of the 11th of February, 1850, entitled “an act to provide for the assessment and collection of taxes” (Id. p. 954et seq.), which retains in force only so much of the...