Eustis v. City of Henrietta

• Decision Date: 08 March 1897
• Parties: EUSTIS et al. v. CITY OF HENRIETTA.
• Court: Texas Supreme Court

39 S.W. 567

EUSTIS et al. v. CITY OF HENRIETTA.

Supreme Court of Texas.

March 8, 1897.

Certified questions from court of civil appeals, 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 (37 S. W. 632) affirming a judgment for plaintiff. A certificate of dissent sent to the supreme court was dismissed (38 S. W. 165), and another certificate of dissent is now sent to it.

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

BROWN, J.

The court of civil appeals for the Second supreme judicial district has submitted to this court the following certificate of dissent: "In this cause, it appearing to the court that the points of dissent heretofore ordered certified to the supreme court were not stated in a manner satisfactory to that court, that order will now be so amended as to state the material points of dissent, as follows: (1) Was the rendition made by W. G. Eustis of the property in controversy to the city of Henrietta, for taxes for the year 1885, and the consequent assessment of city taxes for that year, void for uncertainty of description, the description being set out in the opinion of the majority of this court? (2) If not, then was the sale and deed void? And, if void, could appellants dispute the validity thereof, without paying, or at least tendering, all taxes due? And, as included within this question, is the law requiring this to be done constitutional? (3) The full amount of taxes due, which exceeded $55, not having been paid or tendered, unless the plea quoted in majority opinion should be given the effect of a tender of any sum that might be found due above the $55, or an offer to do equity equivalent to a tender, did it amount to a tender, if indeed, a tender be a substantial compliance with the statute in question, — that is to say, could appellants demand that the court ascertain the amount due before they could be compelled to pay or tender the same? Which points will more fully appear from the majority and dissenting opinions."

The facts necessary to an understanding of the answers we make to the foregoing questions are not stated by the court of civil appeals in the certificate presented, but from the opinion of the court we deduce the following:

In the year 1885 the appellant W. G. Eustis was the owner of the property in controversy, and for the purpose of having it assessed for the taxes of the city of Henrietta, in which it was situated, made a list of his property, in which the property sued for was described as follows:

                          Real and Personal Property Rendered for Taxation
                                         for the Year
                =========================================================================
                   | Name.  |  Year. | Original Grantee | Lot. | Block. | Value
                   |        |        |   or Addition.   |      |        |
                ---|--------|--------|------------------|------|--------|----------------
                19 | Eustis,|        |   McKinney &     |      |        |
                   | W. G.  |  1885  |   Williams.      | All. |   31   | $1,000
                -------------------------------------------------------------------------
                

The original town of Henrietta was laid off on the McKinney & Williams survey, and there was but one block No. 31 on that survey in the city of Henrietta. The amount of the tax due on the land at the time of the trial, up to and including the year 1894, was $174.50. The appellants, among other things, pleaded 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; and they tender into court, in payment of all taxes, $55, which they believe is all the taxes due on said land, and ask that same be accepted in full payment of all taxes from 1884 to 1894, inclusive, and that the land be decreed to them, and this money to plaintiff." The appellants did not pay the taxes due, and made no offer to pay except that contained in the plea set out above.

We answer the first question in the negative. The opinion of the majority of the court of civil appeals treats this question so satisfactorily that it is unnecessary for us to enter into any extended discussion of it. We will add, however, that the general rule which governs in determining the sufficiency of the description of property embraced in an assessment for taxes is that such description is sufficient when it furnishes the means by which the property can be identified from the description itself, or by the use of extrinsic evidence to apply that description to the property. 25 Am. & Eng. Enc. Law, p. 218, and notes; Morgan v. Smith, 70 Tex. 641, 8 S. W. 528; Law v. People, 80 Ill. 268; Fowler v. People, 93 Ill. 116; Woodside v. Wilson, 32 Pa. St. 52; Driggers v. Cassady, 71 Ala. 529; Judd v. Anderson, 51 Iowa, 345, 1 N. W. 677; Allen v. Inhabitants of Woodbridge Tp., 42 N. J. Law, 401. In treating of a description given of property by the assessor for state and county taxes, this court, in the case of Morgan v. Smith, cited above, held that the assessment was void, because it failed to embrace certain requisites of the statute, but used this language, which we think applicable to the present case: "It would doubtless be a sufficient description, when an entire survey is assessed, to give the owners' names, if known, or, if unknown, say unknown, together with the abstract number, certificate number, etc." The requirement to give the abstract, certificate, and survey numbers does not apply to an assessment for city purposes. But the language quoted is applicable to the question before us, because the assessment under consideration was of an entire block, which is analogous to an assessment of an entire survey, and contains all required by the case cited, except the numbers. If we test the sufficiency of the description given in the assessment made in the present case, we find that the entire block is assessed as the property of W. G. Eustis; that it is situated in the city of Henrietta, and is block 31 in that city, on land granted to McKinney & Williams, or in an addition made by them to the city of Henrietta. By examination of the records, we could learn that the city was located in whole or in part, as the case may be, upon the McKinney & Williams survey; that there was a block No. 31 in the city of Henrietta upon that survey claimed by W. G. Eustis; and also that there is no addition to the city of Henrietta known as the "McKinney & Williams Addition." Thus, by resorting to extraneous evidence, which is frequently necessary, we can apply the description given in the assessment to the block of land as found upon the ground, and thus arrive at a satisfactory identification of the property. The majority of the court of civil appeals held correctly that article 5076, Rev. St. 1895, which prescribes the requisites of an assessment for state and county taxes, did not apply to assessments for city taxes, and that the failure to give the certificate number, abstract number, and survey number did not affect the validity of that assessment.

The second question propounded contains, in fact, two questions, the first being, "Were the sale and deed void?" meaning the sale of the land under the assessment and the deed conveying it to the purchaser. We have no jurisdiction to decide any question upon this certificate, except one upon which the judges of the court of civil appeals have disagreed. Looking to the opinion of the majority of that court, and of Justice Hunter, who dissented, we do not find that there was a disagreement as to whether the sale and deed are void. Justice Hunter contends that they are void, but the majority of the court do not assert that they were valid so far as we have been able to ascertain. We must therefore decline to answer that part of the second question.

The second question also embraces the following: "And, if void (that is, if the sale and deed, or either of them, be void), could appellants dispute the validity thereof without paying, or at least tendering, all the taxes due? And, as included within this question, is the law requiring this to be done constitutional?" The majority of the court of civil appeals construed the opinion of this court in the same case delivered upon certified question as holding that law to be constitutional. City of Henrietta v. Eustis, 87 Tex. 19, 26 S. W. 619. After quoting from article 447, Rev. St. 1879, this court used the following language in that case: "This...