Eustis v. City of Henrietta

• Decision Date: 13 December 1897
• Citation: 43 S.W. 259
• Parties: EUSTIS et al. v. CITY OF HENRIETTA.
• Court: Texas Supreme Court

43 S.W. 259

EUSTIS et al. v. CITY OF HENRIETTA.

Supreme Court of Texas.

December 13, 1897.

Certificate of dissent from court of civil appeals of Second supreme judicial district.

Action by the city of Henrietta against M. E. Eustis and another. There was a judgment of the court of civil appeals (41 S. W. 720) affirming a judgment for plaintiff, and a certificate of dissent was sent to the supreme court.

W. G. Eustis, for appellants. J. A. Templeton and Emmett Patton, for appellee.

BROWN, J.

Upon dissent of Justice Hunter, the court of civil appeals has sent to this court the following questions: "On July 3, 1897, it was ordered by this court that the judgment stand affirmed, Justice Hunter dissenting. A motion by the appellants to certify the points of dissent has been granted by this court. We refer to the former opinion of the majority of this court (37 S. W. 632) as containing a correct statement of the case, and this court, without dissent, adopts the conclusions of fact there set out, and proceeds to certify to your honors the following questions, forming the subject of dissent: (1) The majority hold as a conclusion of fact that the sale by virtue of which the tax deed was executed was not in excess of the costs thus authorized; or, in any event, that a necessary inference is that the record will not support the conclusion that such sale was so in excess. From this conclusion of fact Justice Hunter dissents, holding that the question is one not of fact, but of law, and holding that the lands described in the deed, including the property in controversy, were sold for more costs than the law charged them with. The question certified in this connection is whether or not the tax deed, under article 447, Sayles' Rev. Civ. St., is conclusive evidence that the block 31 was sold for $10 taxes and for $2.50 costs, as recited in said deed, and whether or not this amount of costs was more than was prescribed by law. We refer to the majority and dissenting opinions, accompanying this certificate, for a statement of such portions of the record as constitute the basis for the conflicting views. (2) Conceding that the sale by virtue of which the tax deed was executed was in excess of the costs authorized by law, would this fact of excess avail the appellants in avoidance of the deed, in the absence of the payment or tender of payment of the taxes legally due, it being further found that the levy and the assessment of the taxes and the sale were in all other respects valid? (3) Conceding, as is found without dissent, that the true amount of the taxes due to the city on block 31 at the date of the filing of this suit was $174.50, do the allegations of the defendants' answer herein, showing a tender of $55, in connection with an offer to pay whatever should be found to be due against their property, show a tender of the payment of the taxes due, within the meaning of article 447, Sayles' Rev. Civ. St., or were the allegations such an offer to do equity as entitled the pleaders in this case to have a decree in their favor permitting them to pay the true amount of taxes found to be due by the court against said property within a reasonable time after the date of the judgment? The allegations of this answer are as follows: `That in case the court shall find that said property is subject to any taxes due plaintiff, that defendants are ready and willing, and have always been ready and willing, to pay same, and will pay same as soon as the amount of legal tax, if any, is ascertained by the court.' We also respectfully refer to the majority and dissenting opinions herein filed, respectively, on July 3 and July 5, 1897, for a more detailed exposition of the points of dissent and their materiality."

The first ground certified contains two questions: (1) Was the amount specified in the deed ($2.50) a greater sum for costs than was by law allowed to the officer? (2) Was a recital in the tax deed of the amount of taxes and costs for which the land in question was sold conclusive upon the purchaser? The dissenting opinion of Justice Hunter states clearly the law by which we are to determine the amount of costs which the tax collector of the city of Henrietta was authorized to charge against this land. Article 5198, Rev. St. 1895, is in the following language: "The provisions of this chapter in reference to the seizure and sale of real and personal property for taxes, penalties and costs due thereon, shall apply as well to collectors of taxes for towns and cities as for collectors of taxes for counties, and they shall be governed in selling real and personal property by the same rules and regulations in all respects as to time, place, manner and terms and making deeds as are provided for collectors of taxes for counties." Article 5206, Rev. St. 1895, provides that the collector for a county shall receive, for seizing and selling property for taxes, the same compensation as is allowed by law to sheriffs or constables for making levy and sale in similar cases, but no commissions on the sales should be allowed. By article 5208, Id., the tax collector is allowed to charge for but one levy in case he "has levied upon more than one tract of land belonging to the same individual, corporation or company," and for advertising the lands he can charge against each tract only its proportion of the cost for advertising the whole number, and no more. Article 2460, Id., authorizes sheriffs to charge $1.50 for levying an execution, and $2 for executing a deed to each purchaser. But one deed was made, embracing 99 parcels of land; and, under the statutes as cited above, the tax collector was entitled to charge, for levy and deed for the whole, $3.50, or about 4 cents for each parcel, and 25 cents for advertising each parcel, making a total cost of 29 cents that might be charged against the land in controversy. The amount charged was $2.50; that is, $2.21 more than was lawful. Is the recital in the deed of the amount of tax and cost for which the land was sold conclusive against the purchaser? By article 5198, Id., before copied into this opinion, the tax collectors of towns or cities were required to observe the same rules, in selling land and in making deeds, as was provided for the government of tax collectors of the counties. Article 5185, Id., so far as applicable to this question, is in the following language: "The collector of taxes shall execute and deliver to the purchaser, upon the payment of the amount for which the estate was sold, and costs and penalties, a deed for the real estate sold, * * * which deed shall state the cause of sale, the amount sold, the price for which the real estate was sold, the name of the purchaser, firm, company or corporation on whom the demand for taxes was made." It will be observed that the law requires that the deed shall state the "cause of the sale," which we understand to be the failure to pay the taxes assessed against the property, and the cost of levying and advertising it for sale. Article 447, Sayles' Civ. St., provides that the deed to be made by the assessor and collector upon a sale for city taxes shall be conclusive evidence "that the property was sold for taxes or assessments as stated in the deed." Taking this language in connection with that quoted from article 5185, Rev. St. 1895, we think that it means that the deed of the tax collector made in pursuance of a sale for city taxes shall recite the failure of the owner of the property to pay the taxes for the years for which the sale was made, and also the cost of making the sale, stating the amount of each, and that this recital is conclusive proof of the facts stated. As against the purchaser, it was competent for the legislature to make the deed conclusive proof of the facts stated therein, for the...