Brown v. Bonougli

• Decision Date: 15 June 1921
• Docket Number: (No. 3036.)
• Citation: 232 S.W. 490
• Parties: BROWN v. BONOUGLI.
• Court: Texas Supreme Court

Page 490

232 S.W. 490

BROWN v. BONOUGLI.

(No. 3036.)

Supreme Court of Texas.

June 15, 1921.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Walter Brown against A. Bonougli. The Court of Civil Appeals rendered judgment, reversing a judgment for plaintiff, and a writ of error was granted for conflict between decisions. Affirmed.

T. C. Mann and C. M. Henry, both of Laredo, for plaintiff in error.

Hicks, Hicks, Teagarden & Dickson, of San Antonio, for defendant in error.

GREENWOOD, J.

On June 29, 1905, the city of Laredo recovered a judgment in the district court of Webb county against Stephen E. Rice for $31.12, being taxes on certain blocks of land in the city of Laredo, and penalties, with foreclosure of lien on the blocks. The clerk was directed to issue an order of sale, directed to the sheriff or any constable of Webb county, commanding him to seize and sell said blocks, as under execution, and to apply the proceeds of the sale to the satisfaction of the judgment and all costs of the suit. On August 5, 1905, the district clerk issued an order of sale on said judgment, showing clerk's costs to be collected in excess of $1.50; such costs being taxed as in an ordinary civil case.

After due notice, the blocks foreclosed on were sold by the sheriff, under the order of sale, at public vendue, before the courthouse door of Webb county, during lawful hours, on September 5, 1905, when defendant in error, A. Bonougli, became the purchaser of all said blocks, save two, for $45.50, and thereafter the sheriff conveyed to defendant in error the blocks he had purchased. Out of the proceeds of the sale, the sheriff retained the sum of $1.25 for commissions to himself, as on an ordinary execution sale, and paid to the district clerk as his costs a sum in excess of $1.50.

On May 18, 1912, Stephen E. Rice quit-claimed certain of the blocks, which were purchased at the sheriff's sale by defendant in error, to John M. Daniel, who, on February 1, 1913, conveyed same to Walter Brown, plaintiff in error, and Brown thereafter filed this suit to recover the blocks of defendant in error. The trial court concluded that the sheriff's sale to defendant in error was void, because made for clerk's and sheriff's fees which were excessive in amount, and rendered judgment that plaintiff in error recover of defendant in error the blocks sued for, on refunding certain amounts to defendant in error. The Court of Civil Appeals decided that the sheriff's sale was not void, reversed the judgment of the trial court, and rendered judgment that plaintiff in error, Walter Brown, take nothing by his suit.

The Amarillo Court of Civil Appeals had previously determined in Hill & Jahns v. Lofton, 165 S. W. 71, that a sheriff's sale of real estate, under a judgment foreclosing a tax lien, was void where the real estate was sold to pay excessive items of costs, which appeared in the bill attached to the order of sale. The writ of error was granted because of the conflict between the holdings of the Court of Civil Appeals in this case and in the case of Hill & Jahns v. Lofton, supra, While the writ of error has been pending, the Galveston Court of Civil Appeals, in Teat v. Perry, 216 S. W. 650, has announced conclusions in line with the opinion in Hill & Jahns v. Lofton.

The Court of Civil Appeals was plainly right in holding that the clerk and sheriff were not entitled to collect fees in excess of those prescribed by article 7691, Vernon's Sayles' Texas Civil Statutes.

The title of a purchaser of land at a sheriff's sale, under a valid judgment and a valid order of sale, is not affected by the unauthorized retention by the sheriff of more than his lawful commissions. The land is not sold nor offered for sale to pay any certain sum for commissions to the sheriff. The purchaser pays no commissions. He pays the amount of his bid. Having paid the amount of his bid, the purchaser, at a sheriff's sale otherwise valid, becomes entitled to his deed from the sheriff. Being in no wise connected with, nor responsible for, the default of the sheriff alone to lawfully account for the proceeds of the sale, such default can in no wise operate to defeat the purchaser's title. Moore v. Rogers, 100 Tex. 363, 99 S. W. 1023; Bean v. City of Brownwood, 43 S. W. 1042.

The serious question in the case is whether the sheriff's sale was void because for an amount greater than that authorized by law to the extent of the excess in the clerk's fees. It is urged in behalf of defendant in error that it was not shown that the land was sold for an excessive amount, for clerk's fees, but instead that the sheriff paid the clerk a greater sum than was lawful from the proceeds of the sale. The Court of Civil Appeals appears to have adopted that view. We do not so construe the trial court's findings, on which the case is to be reviewed. These findings are that there was taxed and collected a sum in excess of $1.50 as costs of the district clerk in the foreclosure suit. It must be presumed in the absence of opposing evidence, that an indorsement was made by the clerk on the order of sale "of the several items of the bill of costs to be collected," as required by article 3729 of the Revised Statutes.

There is no warrant for any other inference than that the indorsement made by the clerk was in accord with the items which he both taxed and collected. The order of sale, therefore, is to be considered as commanding the officer to seize and sell the blocks foreclosed on to satisfy, not only the amount recovered for taxes and penalties, but an amount for costs, which was excessive and not authorized by the judgment or the law. Was the order of sale void, as found by the trial court, because it bore the indorsement of illegal and excessive items of costs?

It has been invariably exacted of one asserting title under a summary tax sale to show that every legal requirement pertaining to the sale has been strictly and scrupulously complied with. Not only must each thing prescribed by law be done in advance, and at the time, of the exercise of the power to sell, but it must be done exactly as prescribed. Davis v. Farnes, 26 Tex. 298, 299; Meredith v. Coker, 65 Tex. 30. So it was decided in Lufkin v. City of Galveston, 73 Tex. 340, 11 S. W. 340, that the addition of more interest on taxes than was authorized by law affected the power of a tax collector to make a summary sale to pay the taxes together with the excessive interest; the court saying:

"We think, to make a tax sale valid, the collector should have the power to sell, not only for a part, but for the whole, of the amount he is attempting to collect."

The rule announced in Lufkin v. Galveston, supra, was held to render void a summary sale by a tax collector of land, where the amount of taxes and costs for which the land was sold was excessive by reason of the tax collector's charge of too much for his levy and deed. Eustis v. City of Henrietta, 91 Tex. 329, 43 S. W. 259. The decisions in the two cases last cited were succinctly summarized by Judge Brown, who wrote the opinion in Eustis' Case, as follows:

"A sale made, in the summary manner usual in collecting taxes, for a sum exceeding that which is a lawful claim against the property, has been held by this court to be void." Nalle v. City of Austin, 91 Tex. 426, 44 S. W. 66.

Speaking of the method of collecting taxes under levy and sale by the tax assessor and collector, the court said in City of Henrietta v. Eustis, 87 Tex. 18, 26 S. W. 620:

"It is not a remedy given for the benefit of the taxpayer; it is harsh and summary to that degree that courts have universally held that its provisions, being for the benefit of the state, must be strictly pursued in order to divest title of the owner."

The rule that it is essential to the power to summarily sell land for delinquent taxes that every legal requirement relating to the exercise of the power be absolutely fulfilled springs from the nature of the power as derived entirely from the statutes, and from the nature of the proceeding as harsh, peremptory ex parte, and administrative. Blackwell on Tax Titles, §§ 121, 131. Ought the same rule to be applied to sales for the collection of taxes, under decrees of foreclosure rendered by courts having jurisdiction over the delinquent property, on proper notice to the owner?

None of the controlling reasons which support the rule in summary sales apply to judicial foreclosures of tax liens. Where the sheriff sells to satisfy a judicial foreclosure of a tax lien, his authority is no more derived entirely from the statutes than when he sells under an ordinary execution. The valid judgment of a court of competent jurisdiction and a writ for the enforcement of the judgment are essential to confer on the sheriff the power to sell. Bailey v. Block, 104 Tex. 105, ...