Graham v. Caballero

• Decision Date: 11 July 1951
• Docket Number: No. 4795,4795
• Citation: 243 S.W.2d 286
• Parties: GRAHAM v. CABALLERO.
• Court: Texas Court of Appeals

Page 286

243 S.W.2d 286

GRAHAM v. CABALLERO.

No. 4795.

Court of Civil Appeals of Texas, El Paso.

July 11, 1951.

Rehearing Denied Aug. 1, 1951.

Ellis & Minick, San Benito, for appellant.

Bowie & Scanlan, San Benito, for appellees.

SUTTON, Justice.

This suit is denominated one in trespass to try title. The first count is in the statutory form, but there is a second count wherein the plaintiff, Mrs. Alice B. Graham, a widow, pleaded the institution and prosecution of a tax proceeding to collect delinquent taxes due the County and State, and other taxing units, including the San Benito Independent School District and Cameron County Water Improvement District No. 2, the sale thereunder and ultimate transfer of the title to the defendant and the actions and steps taken by her to redeem the property sold. The controversy here is between the parties named, Mrs. Graham and Caballero.

The trial was to the Judge of the 103rd District Court of Cameron County without the intervention of a jury and judgment for the defendants. The judgment is predicated on the grounds redemption is not available under the law applicable to the facts of the case, and if that conclusion be erroneous plaintiff is, nevertheless, precluded because of her failure to comply with the statutory requirements to effect such redemption. The points presented on the appeal challenge these conclusions and the sole controversy between the parties is the right of redemption.

The tax suit was instituted by San Benito Independent School District under the provisions of Art. 7345b, Vernon's Ann.Civ.St. and all taxing units were made parties under the provisions of Sec. 2 of said article, each of which units answered and set up their claims for taxes due, including the Water District for the amount of $59. Judgment in the tax suit was entered September 24, 1945, and sale was had thereunder on February 8, 1946, to the School District. The District for itself and as trustee for the other taxing unit sold the property to one Markworth August 12, 1946, who in turn sold it to Caballero January 24, 1947.

Mrs. Graham July 30, 1946, addressed a letter to the Tax Collector of Cameron County requesting the amount of taxes due on the lands involved in this suit, expressing a desire to pay the same and clean the property up, which letter was referred to the Collector for the School District, and Mrs. Graham so advised. She thereafter addressed two letters to the Collector for the School District, the second dated September 24, 1946. The Collector replied in longhand on the letter of Mrs. Graham, advising her the land had been sold for taxes to the District and by it sold to Mr. Markworth, giving his address and the amount necessary to redeem the property. October 26, 1946, Hon. Robin M. Pate, attorney for the School District, wrote Mrs. Graham acknowledging a letter written by her to the Collector for the District, and advising her that the property had been sold to Markworth for $507.33, and that if she desired to redeem it she would have to pay him a 25% penalty plus $1.00. On January 21, 1947, Mrs. Graham addressed a letter to the Tax Collector for the School District, saying she had been advised by Mr. Pate it would be necessary to pay Markworth $635.16; that she did not know just how to reach Markworth nor the necessary procedure to redeem, and enclosed her check for the amount mentioned. Mr. Pate wrote Mrs. Graham on January 28, 1947, that he had erred in the amount and supplied the items and the total sum necessary to redeem in the amount of $707.78. January 31, 1947, Mrs. Graham wrote Mr. Pate and enclosed her check for $707.78, and requested the necessary redemption certificates at his convenience. The check in due course cleared and was paid.

Mr. Pate sought to pay the money to Markworth and obtain a quitclaim deed from him, but was advised Caballero...