Ditmore Land & Cattle Co. v. Kahn

• Decision Date: 26 April 1957
• Docket Number: No. 3294,3294
• Citation: 302 S.W.2d 145
• Parties: DITMORE LAND AND CATTLE COMPANY, Appellant, v. Leo KAHN, Appellee.
• Court: Texas Court of Appeals

Page 145

302 S.W.2d 145

DITMORE LAND AND CATTLE COMPANY, Appellant, v. Leo KAHN, Appellee.

No. 3294.

Court of Civil Appeals of Texas, Eastland.

April 26, 1957.

Conner & Conner, Eastland, for appellant.

Frost & Frost, Eastland, for appellee.

GRISSOM, Chief Justice.

On March 10, 1949, a judgment was rendered in Eastland County foreclosing a tax lien on five acres of land described therein as follows:

'Tract No. 3: 5 ac. Abst. 68 L. Cooper Sur. as desc in Vol 342, Page 448, deed rec. of Eastland Co. Tex. & being out of the S 1/2 of the NE 1/4 Sec 4, Blk 4, H&TC Ry. Co. Sur. Eastland County, Texas, L. Cooper, Grantee.'

On April 11, 1949, the sheriff sold said property and executed a deed thereto to Ditmore Land and Cattle Company, hereafter referred to as Ditmore. In June, 1953, Leo Kahn filed suit in trespass to try title to an undivided 270/2880 interest in the minerals in said five acres. In October, 1954, Kahn filed an amended petition which in the first count was practically the same as the original and in the second count was a bill of review attacking all of said tax proceedings and deed both as to said mineral, or royalty, interest and the surface of said five acres. It was alleged that in May, 1937, Kahn acquired said five acres of land and said mineral interest from C. H. Goodwin, said five acres and said mineral interest being separately described in the deed, as shown by its record in volume 342 at page 448 of the Deed Records of Eastland County. He alleged the filing of said tax suit against twenty-one defendants, including Kahn, to foreclose tax liens on said five acres and other unrelated tracts in which Kahn had no interest; that in November, 1948, a citation for personal service on all the defendants was issued to Eastland County; that the sheriff of Eastland County returned said citation showing service on only three of the twenty-one defendants in Eastland County and stating that he was unable to locate any other defendants in that county; that no other citation for personal service was issued; that Horace Walker, as attorney for the State, filed an affidavit for citation by publication of all defendants stating that their residences were unknown to him and 'after inquiry cannot be ascertained;' and that he had caused citation to be issued for personal services on each defendant 'to each and all addresses shown on each and all * * * assessment lists in the office of the Tax Assessor-Collector of this County on property described in this suit, and has attempted to secure personal service thereon, but has not been able to do so.' (Emphasis ours.) Kahn alleged that said affidavit was false and fraudulently made; that the property appeared on the tax assessor's list in the office of the tax assessor-collector of Eastland County for every year involved in said suit; that, contrary to the affidavit, the name of the owner of said property was known; that for every year for which delinquent taxes were claimed Kahn's address appeared on said tax assessment list in said office as the owner of said mineral interest; that said attorney knew the name and address of Kahn and deliberately made said false affidavit; that, if he did not, a casual check in the office where he prepared said suit would have disclosed said information; that Kahn acquired the five acres and said mineral interest from C. H. Goodwin in the same transaction and, although they were separately assessed on the tax rolls, Walker had readily accessible to him the correct address of Kahn, which was on the assessment rolls showing the assessment of taxes on said mineral interest against Kahn; that, contrary to the affidavit, Walker did not attempt to obtain personal service of citation and that the attempt alleged was a subterfuge; that citation by publication was issued prior to the return of one citation for personal service and the return on the citation by publication was made more than a month prior to the return of one for personal service; that judgment was rendered for the State only in the tax suit and for only $36.49; that the five acres were attempted to be conveyed by the sheriff to Ditmore without reference to, or description of, the mineral interest owned by Kahn, which had been separately assessed to him. Kahn alleged that there was neither a foreclosure of a lien against said minerals nor a conveyance thereof.

Kahn alleged the court was without jurisdiction to render said judgment and said proceedings and deed should be annulled because the affidavit upon which citation for publication was based was false and fraudulent. (In this connection see Kitchen v. Crawford, 13 Tex. 516, 520 and 21 A.L.R.2d 936.) He alleged that said affidavit did not comply with Texas Rules of Civil Procedure, rule 117a and that it did not contain allegations that 'diligent' inquiry had been made to ascertain either the name or residence of the owner.

Kahn alleged that he had no notice of any of said tax proceedings or the sheriff's deed until the 26th of September, 1952, and that he could not have learned thereof prior thereto by the use of ordinary diligence; that he continued to receive 'oil run payments' from said mineral interest until August 10, 1952, and did not learn that Ditmore was claiming an interest in any of said property until September 26, 1952, and that nothing happened prior thereto to indicate that anyone was claiming the property.

Kahn alleged that since the suspension of payment of royalty in August, 1952, there had accumulated from his 270/2880 interest in the minerals more than $2,000; that he had paid all taxes assessed against said mineral interest; that he never received a tax statement with reference to said five acres and did not know that the five acres and said mineral interest had been separately assessed until September 26, 1952; that at all times he had been able to pay the taxes assessed against the five acres and would have done so had he known they were assessed against it separately from said mineral interest. He alleged that the property sold at the tax sale for a grossly inadequate consideration. He tendered the purchase price paid at the tax sale, plus interest and all taxes paid by Ditmore and offered to do equity. He prayed, among other things, for judgment setting aside said tax sale and deed, removal of the cloud on his title and judgment for the accumulated oil runs from his mineral interest. The court rendered judgment in accord with said prayer and that the agreed purchase price, to wit, $25, plus interest and taxes paid by Ditmore be paid into court for Ditmore. Ditmore has appealed.

The question relative to the validity of the service of citation was decided in Ditmore Land and Cattle Company v. Hicks, Tex.Civ.App., 282 S.W.2d 753; Id., Tex., 290 S.W.2d 499.

Appellant contends the court erred in permitting introduction of the affidavit for citation by publication, records of the tax assessor showing the assessment of taxes against Kahn on said mineral interest and his address, and in rendering judgment cancelling the sale and tax deed because the judgment was valid on its face and Kahn's suit was a collateral attack on said judgment. Appellant further contends that, as a matter of law, Kahn's suit was barred by both the two and four year statutes of limitation and laches. Vernon's Ann.Civ.St. arts. 5526, 5529.

Rowland v. Klepper, Tex.Com.App., 227 S.W. 1096 and Harrison v. Sharpe, Tex.Civ.App., 210 S.W. 731 (Writ Ref.) were suits to set aside tax sales and deeds. It was there held that since the State had been paid its taxes it was not a necessary party; that it was not necessary to allege that the defendant in the tax suit had a meritorious defense; that such a suit as this was a bill of review and a direct attack on the tax proceedings; that parol evidence was admissible to contradict recitals of service in the judgment; that, although the tax judgment could not be set aside, upon a proper showing, the sale and tax deed should be cancelled. It was further held, under a comparable fact situation, that when the property was purchased for a grossly inadequate consideration the vendee was not an innocent purchaser.

[2, 3] Our Supreme Court has held that such a suit is not barred by the statutes of limitation until four years after the defendant knew or should have known of the judgment. In Levy v. Roper, 113 Tex. 356, 256 S.W. 251, 253, the court said:

'The action of Mrs. Roper and children was brought within 4 years after they either knew or could have known, by the use of ordinary diligence, of the judgment foreclosing the vendor's lien or of the sheriff's sale. The action was therefore not barred by limitation, even though said parties had all been adults when the judgment was rendered. Kimmell v. Edwards (Tex.Civ.App.) 194 S.W. 169; Foust v. Warren (Tex.Civ.App.) 72 S.W. 406, 407; Rose v. Darby, 33 Tex.Civ.App. 341, 76 S.W. 799.'

See also Harrison v. Orr, Tex.Com.App., 296 S.W. 871, 873, Ibid., Tex.Com.App., 10 S.W.2d 381, 382; Smith v. Lightfoot, Tex.Civ.App., 143 S.W.2d 151, 152; 25 Tex.Jur 644, and 6 Tex.Jur.Supp. 572. We conclude that there was evidence sufficient to sustain findings to the effect that said tax judgment, sale and deed were procured by the fraud of Walker and that Kahn did not learn thereof until September, 1952, and was not negligent in...