Frost v. Fowlerton Consolidated School Dist. No. 1

• Decision Date: 29 November 1937
• Docket Number: No. 3181.,3181.
• Citation: 111 S.W.2d 754
• Parties: FROST v. FOWLERTON CONSOLIDATED SCHOOL DIST. NO. 1 et al.
• Court: Texas Court of Appeals

Page 754

111 S.W.2d 754

FROST v. FOWLERTON CONSOLIDATED SCHOOL DIST. NO. 1 et al.

No. 3181.

Court of Civil Appeals of Texas. Beaumont.

November 29, 1937.

Rehearing Denied December 15, 1937.

Appeal from District Court, La Salle County; S. B. Carr, Judge.

Suit by O. T. Howard against T. S. Masterson and others, wherein A. H. Rife was appointed receiver of the properties of T. S. Masterson, wherein Edith Buckley intervened and filed a cross-petition against the Fowlerton Consolidated School District No. 1 and others, and wherein C. M. Frost also intervened. From an adverse judgment, intervener Frost appeals, opposed by the school district and others.

Reversed and rendered.

Lawler, Wood & Childress, of Houston, and Johnson & Long, of Carrizo Springs, for appellant.

George R. Thomson and Robert G. Harris, both of San Antonio, for appellees.

WALKER, Chief Justice.

On the 23d day of July, 1936, Edith Buckley delivered to A. H. Rife, receiver of T. S. Masterson, the following instrument duly executed by her, and in connection therewith the warrant therein described:

"O. T. Howard, vs. T. S. Masterson.

"In the District Court, Bexar County, Texas 45th Judicial District of Texas. No. B-70958.

"Whereas, the Fowlerton Consolidated School District No. 1, of La Salle and McMullen Counties, Texas, by H. S. Hollan, its president, and W. B. Stanfield, John R. Holub, Anton J. Barta, and Raimund Bartos, trustees, executed its certain voucher, or order, dated Aug. 12, 1931, directing the Stockmen's National Bank, of Cotulla, Texas, Depository for La Salle County School Funds, to pay out of the Maintenance Fund, to T. S. Masterson, the sum of $582.36; which voucher was approved by G. A. Welhausen, County Judge of said La Salle County.

"And whereas, the said T. S. Masterson, the payee in said voucher, before the maturity of the said voucher, for value, sold and transferred the said voucher to Edith Buckley.

"And, whereas, in the above styled and numbered cause, of O. T. Howard, vs. T. S. Masterson, filed to No. B-70958, in said 45th District Court, of Bexar County, Texas, A. H. Rife was appointed by said court as receiver of the properties of the said T. S. Masterson, wherein the said Edith Buckley filed her petition of intervention, presenting her said claim in the said receivership, which petition of intervention she filed also as a cross petition against the said School District and against the other cross defendants therein named.

"And, whereas, on April 21, 1936, in the said receivership suit, an order was made and entered in and by said 45th District Court, adjudicating and establishing the claim of the said Edith Buckley as a valid and just claim against the above named defendant and against the properties in the custody of said receiver, and directing said receiver to pay the same out of funds available thereto in his charge.

"Now, this instrument witnesseth, that I, Edith Buckley, a feme sole, of Bexar County, Texas, the owner of the said claim, do hereby acknowledge to have this day received from the said A. H. Rife, receiver of the properties of the said T. S. Masterson, the sum of $807.44; the same being payment to me in full of the said principal sum of $582.36, together with $150.78, as the interest thereon at the rate of six per cent per annum from March 30, 1932 to this date and $74.30 as costs incurred and paid by me in the matter of said petition of intervention and cross-petition, and for and in consideration of such payment to me, I hereby assign and transfer, without any recourse on me, to the said A. H. Rife, receiver, as aforesaid, and to his assigns, all of my right, title, and interest in and to said voucher and said claim, and in and to every claim that I have or may have against any and all of the cross-defendants in my said petition of intervention.

"Witness my hand; dated this, the 23rd day of July, 1936.

                                    "Edith Buckley."
                

We accept as true all the fact recitations in this instrument. Edith Buckley filed her intervention on the 19th day of March, 1936, praying for judgment for the amount of her warrant against appellee and its board of trustees, as drawers, Stockmen's National Bank, as drawee, and T. S. Masterson, as indorser, and others not necessary to mention.

The warrant thus assigned was issued by Fowlerton Consolidated School District No. 1, hereinafter referred to as appellee, and delivered to Masterson as a refund of taxes paid by him to appellee on property belonging to him, under the mutual mistake that his property was within the limits of appellee, the school district; the amount of the taxes were regularly assessed against Masterson's property by appellee for the years 1911-1926; he paid the taxes in good faith and appellee accepted them in good faith. When it was discovered that Masterson's property was not within the limits of the school district, appellee, in an effort to refund him his taxes, executed and delivered to him the warrant in issue.

On the same day that Edith Buckley assigned the warrant to Rife, the receiver, by an instrument in writing of that date he assigned it to appellant, C. M. Frost; this instrument recited generally the facts recited in the Buckley assignment and further as follows:

"Now, therefore know all men by these presents, That I, A. H. Rife, Receiver of the properties of the said T. S. Masterson, and acting in that capacity and under and by virtue of the authority and direction given in that certain order of sale dated April 20th, 1936, and order of confirmation dated July 22nd, 1936, and entered in that certain suit hereinabove referred to, and in consideration of the sum of eight hundred seven and ($807.44) 44/100 dollars paid to me by C. M. Frost, of Harris County, Texas, the same being payment to me in full of said principal sum of Five Hundred, Eighty-two and 36/100 ($582.36) Dollars, together with one hundred fifty and ($150.78) 78/100 dollars, as the interest thereon at the rate of six per cent per annum from March 30th, 1932, to this date, and the sum of seventy-four and ($74.30) 30/100 dollars as incurred and paid by Edith Buckley in the above styled and numbered cause, have sold, assigned, transferred and set-over and by these present do sell, assign, transfer and set-over unto the said C. M. Frost the said voucher, claim and cause of action, hereby subrogating the said C. M. Frost to all the rights of T. S. Masterson and A. H. Rife, Receiver of the properties of T. S. Masterson, in and to all rights, titles, claims and interests under and by virtue of said voucher and said claim, against all the makers, sureties, endorsers, guarantors or other obligors thereon, with full right in the said C. M. Frost to be substituted as party plaintiff and to continue the prosecution of said claim against the above named parties, other than the said T. S. Masterson.

"Witness my hand this the 23rd day of July, A. D. 1936.

"A. H. Rife, Receiver of the properties of T. S. Masterson."

We adopt as true the fact recitations in this assignment.

On the 20th day of July, 1936, the district court of Bexar county sustained the pleas of privilege filed by appellee and all the other defendants named by Edith Buckley in her intervention, except T. S. Masterson and his receiver, and transferred the case as to them to the district court of La Salle county where it was docketed, No. 2294, O. T. Howard, Plaintiff v. T. S. Masterson et al., Defendants.

On the 25th day of September, 1936, appellant, C. M. Frost, filed his intervention in cause No. 2294 on the docket of the district court of La Salle county, pleading the assignment of the warrant by Masterson to Edith Buckley, her assignment to Rife, the receiver, and the receiver's assignment to him; that the issuance of the warrant was duly authorized by appellee; that it was presented to the drawee for payment, etc.

The defendants answered the Frost intervention by pleas in abatement and demurrers, which were overruled, general denial, and specially raising the issues of law hereinafter discussed.

On trial to the court without a jury on the 25th day of September, 1936, appellant dismissed from his intervention all defendants except appellee and those acting officially with it in the issuance of the warrant; the court found in favor of appellee on its plea of limitation of four years and, on that finding, rendered judgment that appellant recover nothing, and that appellee go hence without day and recover its costs. From that judgment appellant, Frost, prosecuted his appeal to the San Antonio Court of Civil Appeals; the case is on our docket by order of transfer by the Supreme Court.

Opinion.

On the following propositions of law the warrant when issued and delivered to Masterson and by him transferred to Edith Buckley was a valid obligation against appellee:

First. The payment of the tax, by Masterson through a mutual mistake, on property not within the school district was not a "voluntary payment" within the rule denying recovery for taxes paid voluntarily and without compulsion. The general rule is thus stated by 61 C.J. 985: "It is a well settled general rule that, if a wrongful or illegal tax is...