Eustis v. City of Henrietta

• Decision Date: 03 July 1897
• Citation: 41 S.W. 720
• Court: Texas Court of Appeals
• Parties: EUSTIS et al. v. CITY OF HENRIETTA.<SMALL><SUP>1</SUP></SMALL>

41 S.W. 720

EUSTIS et al. v. CITY OF HENRIETTA.¹

Court of Civil Appeals of Texas.

July 3, 1897.

Appeal from district court, Clay county; George E. Miller, Judge.

Action by the city of Henrietta against M. E. Eustis and another. On return of the record from the supreme court, which answered certain certified questions, the case was reconsidered, and judgment for plaintiff, from which defendants had appealed, is reaffirmed.

W. G. Eustis, for appellants. Templeton & Patton, for appellee.

Statement of the Case, with Conclusions of Fact.

TARLTON, C. J.

On a former day of this term the judgment herein appealed from was affirmed by this court, Justice HUNTER dissenting. Eustis v. City of Henrietta, 37 S. W. 632. The points of dissent were certified to our supreme court, which, deeming it unnecessary to determine the third point, sent the record back to us, as we apprehend, for further proceedings. 39 S. W. 567. In discharge of the duty thus devolved, we make, as briefly as possible, the following disposition of the questions presented:

Respectfully referring to our former opinion (37 S. W. 632), we adhere to the statement of the case and the conclusions of fact there set out. These conclusions are found without dissent.

Upon the question whether the sale by virtue of which the tax deed was executed was in excess of the tax collector's costs authorized by law, the majority of the court further find as a conclusion of fact that a fair inference to be deduced from the record is that such sale was not in excess of the costs thus authorized; or, in any event, 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.

We deem it proper to copy from the record the evidence upon which rests the conclusion of the majority on this question of fact. On the one hand, in favor of the appellants' contention that such excess exists, the tax deed shows that the land in controversy was sold for $10 tax and $2.25 costs; total, $12.25. The testimony of two witnesses—John F. Conn and J. H. McClure—shows that the legal amount of costs on the land in controversy was 25 cents. On the other hand, the witness McClure, the city tax assessor and collector of the city of Henrietta from April, 1884, to April, 1888, testified without objection: "I kept a record of this sale [meaning the sale in question] on the sale record book kept for that purpose. It shows a record of the sale of this property. It shows only 25 cents costs taxed against this block 31." Again: "There are a large number of tracts on the city tax rolls for 1885 assessed to W. G. Eustis, and the said block 31 [the property in question] is the seventeenth tract on the list. The legal costs for said sale are $2.30 for the first tract, and 25 cents for costs for each succeeding tract. The said tax deed [the deed in question] shows the costs on each succeeding tract to be $2.25, which is incorrect; that is, it shows the tax to be $10 and the costs $2.25, and a total of $12.25 taxes and costs, while it should be $10.25 taxes and costs." The testimony of this witness upon this point is undisputed, save in so far as it conflicts with the recitals in the deed. In this connection we deem it not amiss to call attention to the fact that the deed on its face does not, as we think, indicate any excess of costs in connection with this sale, and that to show such excess in the deed it was necessary to resort to parol evidence.

Conclusions of Law.

The opinion of the majority, to be found in 37 S. W. 632, expresses the views of all the members of this court upon all the assignments of error urged by the appellant, save such as still form the subject of dissent, or such as are specifically considered, as hereinbelow set out. To avoid useless repetition, and with the exception stated, that opinion is still adhered to. Proceeding, then, specifically to consider the assignments thus excepted, we hold:

1. The assessment of the property in controversy is not void on account of the description given in the tax rolls, nor is the deed void for want of sufficient description of the property. Eustis v. City of Henrietta (Tex. Civ. App.) 37 S. W. 634; Macmanus v. Orkney (Tex. Sup.) 40 S. W. 715; Eustis v. City of Henrietta (Tex. Sup.) 39 S. W. 567. This conclusion is announced without dissent, Justice HUNTER yielding to the authority of the case last cited.

2. The majority of the court are still of opinion that the allegations of the defendants' answer fail to show a tender of the payment of the taxes due, within the meaning of article 447, Sayles' Civ. St. We adhere to the conclusions and the reasons announced in our former opinion. 37 S. W. 634. Having found that the sum of $55 was less than the taxes legally due, the tender of that amount in the averments of the defendants' answer does not constitute, in our opinion, a tender of the entire amount of taxes, found, as a matter of fact, without dissent, to be in the sum of $174.50. From this conclusion of law Justice HUNTER still dissents, on the ground stated in his dissenting opinion. Id. 637.

3. As indicated by our conclusions of fact, the majority of this court find that the sale by virtue of which the tax deed was executed was not in excess of the tax and costs authorized by law. If this conclusion be correct, the appellants' proposition, urging that "a sale for an excess of the tax authorized by law is void," becomes irrelevant. If this conclusion be not correct, the majority of this court (Justice HUNTER dissenting) adhere to the view announced in 37 S. W. 635, that this fact of excess "would not avail the appellants in avoidance of the deed, in the absence of the payment or tender of payment of the taxes legally due. This proposition was involved in the certificate by us to our supreme court, and was decided by that court adversely to the appellants." 87 Tex. 16, 19, 26 S. W. 619, 620. The decision of this question by our supreme court in the case referred to seems to be yet adhered to, for in Ozee v. City of Henrietta (Tex. Sup.) 38 S. W. 768, Chief Justice Gaines refers to the certificate in that case as legitimately involving a decision of this very question of excess, and holds, in effect, that it was the intention of the court to decide that, the lot having been sold to pay a larger amount than was due, the deed could not be avoided for that reason without proof of the payment of taxes. Until this decision be expressly overruled by our supreme court, we shall abide by it. In this connection Justice Stephens makes the following additional suggestion: "Granting that article 447, Sayles' Civ. St., is unconstitutional, as is held in the opinion of Justice Brown, in so far as it requires the owner of property to pay all taxes due thereon before he can defeat a recovery thereof under a tax deed void for uncertainty of description, the deed for such uncertainty not conveying anything, does it follow, or is it reasonable to hold, that its requirements are also unconstitutional, where the description in the deed is sufficient to identify the property, and where there has been a valid assessment of taxes against the property, though in making the sale the collector, in addition to the amount legally and duly assessed, demands the payment of a greater sum to cover the costs of levy and sale than the law authorizes? We think not. In nearly all of the cases cited by Justice Brown in support of the opinion, a valid assessment of the taxes was wanting, and hence no specific lien was fixed upon the property. But in this case, as was held in that...