City of San Antonio v. Toepperwein

• Decision Date: 18 January 1911
• Citation: 133 S.W. 416
• Parties: CITY OF SAN ANTONIO v. TOEPPERWEIN.
• Court: Texas Supreme Court

Page 416

133 S.W. 416

CITY OF SAN ANTONIO v. TOEPPERWEIN.

Supreme Court of Texas.

January 18, 1911.

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

Action by the City of San Antonio against Udo Toepperwein. There was a judgment in the Court of Civil Appeals (124 S. W. 699) reforming and affirming a judgment for the city, and it brings error. Reversed and rendered.

Joseph Ryan, for plaintiff in error. Camp & Camp and Solon Stewart, for defendant in error.

BROWN, C. J.

This suit was instituted by the city of San Antonio against the defendant in error to recover the amount of a judgment which was rendered in favor of the said city October 3, 1904, against Maria de los Santos Gonzales and her husband, Florentio Gonzales, for the sum of $3,203.09, with interest at 6 per cent. and for cost and foreclosure of tax lien, which judgment was unpaid. Maria Gonzales died August 2, 1906. On December 1, 1904, she, with her husband, conveyed the lot upon which the judgment lien existed to Hortense Nicklis, who, joined by her husband, on the 16th day of July, 1907, conveyed the lot to Udo Toepperwein, subject to the lien of the said judgment and to the lien of all taxes which had accrued thereon. Taxes were unpaid to the city for the years 1903, 1904, 1905, and 1906, amounting to the sum of $509.54, with interest at 6 per cent. A penalty of 10 per cent. for each year in which the taxes were assessed had also accrued and was due upon the said property to the city at the time the judgment in this case was rendered. The case was tried without a jury, and the court gave a personal judgment against the defendant Toepperwein for the amount of the judgment rendered against Gonzales and wife, also for the taxes for the years 1903, 1904, 1905, and 1906, with interest at 6 per cent., and also a penalty of 10 per cent. on the amount of taxes due for each year with foreclosure of the liens on the lot, except that the court refused to foreclose the lien for the penalty upon the taxes due for the years 1903 and 1904, because the property was the homestead of Gonzales and wife during those years. Therefore the penalty could not be enforced against the property. From this judgment Toepperwein appealed, and the Court of Civil Appeals modified the judgment so that it should not operate as a personal judgment against Toepperwein; that is, that, if the property failed to pay the debt, Toepperwein should not be held responsible for the deficiency.

Section 15 of article 8 of the Constitution of this state reads as follows: "The annual assessment made upon landed property shall be a special lien thereon, and all property, both real and personal, belonging to any delinquent taxpayer shall be liable to seizure and sale for the payment of all the taxes and penalties due by such delinquent; and such property may be sold for the payment of the taxes and penalties due by such delinquent, under such regulations as the Legislature may provide." The plain and unmistakable meaning of the language quoted subjects all landed property in this state to sale for assessment of taxes lawfully made thereon and for all penalties provided by law which may accrue on account of delinquencies in the payment of such taxes. "All landed property" is a comprehensive phrase, and the Constitution makes no distinction as to the use which may be made of it. The language comprehends all lands whether it be a homestead or not. We presume that it would not be contended that section 15, art. 8, would not be sufficient to make the homestead liable for the penalties if the Constitution did not contain section 50, art. 16, What is the correct construction of the two sections? Article 16, § 50, contains these provisions: "The homestead of a family shall be and is hereby protected from forced sale for the payment of all debts, except for the purchase money thereof, or a part of such purchase money, the taxes due thereon. * * * No mortgage, trust deed or other lien on the homestead shall ever be valid, except for the...