City of Houston v. Bartlett

• Decision Date: 17 April 1902
• Citation: 68 S.W. 730
• Parties: CITY OF HOUSTON v. BARTLETT.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

68 S.W. 730

CITY OF HOUSTON v. BARTLETT.¹

Court of Civil Appeals of Texas.

April 17, 1902.

Error from district court, Harris county; Chas. E. Ashe, Judge.

Action by D. W. Bartlett against the city of Houston. From a judgment for plaintiff, defendant brings error. Affirmed.

Stewart, Stewart & Lockett and Joe M. Sam, for plaintiff in error. J. W. Campbell, for defendant in error.

PLEASANTS, J.

Defendant in error brought this suit to cancel and remove as cloud upon his title to lots 6, 7, and 8 and one-half of lot 12, in block 83, in the city of Houston, a tax lien claimed by said city upon the above-described property to secure the payment of taxes assessed by the city against said property for the years 1894, 1895, and 1896. The city of Houston answered by general and special exceptions and general denial and by special pleas setting up that the taxes upon said property for the years above mentioned were due and unpaid, and that at the time the defendant in error purchased the property he knew that said taxes were due and unpaid and that the city had recovered a judgment for same and foreclosed its tax lien, which judgment had never been satisfied; and that the city of Houston could not be estopped from the collection of said taxes by any acts, omissions, mistakes, or wrongdoings of the sheriff or district clerk of Harris county or the city attorney of said city. Briefly stated, the facts disclosed by the record are as follows: On July 17, 1897, the city of Houston recovered a judgment against E. A. and R. A. Grant for $336.37, taxes due for the years 1894, 1895, and 1896, upon the property above described, with foreclosure of tax lien, and an order of sale of said property. At the time this suit was brought, taxes were also due upon said property for the years from 1887 to 1893, inclusive, but said taxes were not included in the suit, and no mention of same nor of the city's lien for said taxes was made in the petition or in the judgment rendered thereon. No order of sale was issued on this judgment until August 4, 1900. In the meantime, on September 8, 1898, the city of Houston recovered a judgment against E. A. and R. A. Grant for $749, taxes due on said property for the years from 1887 to 1893, inclusive, and also for the year 1897, with foreclosure of tax lien on said property, and an order of sale. Neither the petition nor the judgment in this case mentioned the former judgment or the tax lien foreclosed in the former suit. Upon this judgment an order of sale was issued on August 22, 1899, under instructions of the city attorney of the city of Houston, and the property was sold by the sheriff of Harris county in the manner prescribed by law, and purchased by Mrs. A. B. Looscan for $843. This money was received by the city of Houston, and the sheriff executed a deed for the property to Mrs. Looscan, regular in all its recitals. This deed was promptly recorded, and in November, 1900, Mrs. Looscan conveyed the property to the defendant in error, who paid a valuable consideration therefor, had his deed recorded, and took possession of the property, and is now holding possession of same. No notice was given at the sheriff's sale of the former judgment for taxes, or of any claim for taxes by the city, other than that evidenced by the judgment under which the sale was made, and Mrs. Looscan had no actual notice of such claim. At the time the defendant in error purchased from Mrs. Looscan he knew that the city was asserting a lien upon the property under the judgment rendered in 1897. It was not shown that the amount paid by Mrs. Looscan to the city for said property was not the full value of the same at the time of such sale. It was not shown that the city had formally ratified the act of the city attorney in having the property sold under the second judgment. The cause was tried by the court below without the intervention of a jury, and judgment rendered in favor of defendant in error in accordance with the prayer of his petition. We are asked to reverse this judgment for the following reasons: First. Because the city of Houston, being a municipal corporation chartered under the laws of the state of Texas, cannot be estopped from the collection of taxes by acts, omissions, mistakes, or wrongdoings of the sheriff or district clerk of Harris county, or the city attorney of the city of Houston, or any other person. Second. Because under section 40 of the charter of said city suit can be brought by the city for all taxes due by property owners for the year 1875 and for any subsequent year, and any person who shall purchase property incumbered with taxes shall be deemed as to such taxes a delinquent taxpayer, and such person takes the property charged with a lien, and he cannot interpose any defense which his vendor might not have interposed had he continued to be the owner. From which it is contended that Mrs. Looscan, by the purchase of...