Hall v. Miller

• Decision Date: 08 April 1908
• Citation: 110 S.W. 165
• Parties: HALL v. MILLER, Tax Collector.
• Court: Texas Court of Appeals

110 S.W. 165

HALL v. MILLER, Tax Collector.

Court of Civil Appeals of Texas.

April 8, 1908.

Rehearing Denied May 13, 1908.

Appeal from District Court, San Saba County; Clarence Martin, Judge.

Action by N. J. Hall against Hugh Miller, tax collector, to restrain the collection of certain taxes. Judgment for defendant, and plaintiff appeals. Affirmed.

The appellant, a resident of the state of Missouri, owned a tract of land in San Saba county, Tex., a part of which was sold by his agents residing in that county to residents of that county, who executed for the deferred payments their promissory negotiable notes, payable to the appellant, secured by an express vendor's lien on the land sold. These notes retaining the vendor's lien were procured from the purchasers by appellant's agents, and were left with his agents in San Saba county, Tex., for the purpose of collection, and were so held by the agents at the time of the assessment of taxes. The notes were assessed for taxation by the county and state in San Saba county for the taxes due for the years 1906 and 1907. The appellant instituted this suit for the purpose of restraining the collection of the taxes in question, on the ground that the notes were not taxable within this state, as the state had no jurisdiction over the notes in question, as their situs would be the place of his residence —the state of Missouri; and also upon the ground that there was no statute of this state making notes of this character, owned by a nonresident, subject to taxation. The case was tried below before the court upon an agreed statement under the statute, and judgment was rendered against the appellant, from which he has perfected his appeal. The facts agreed to are as follows:

"On January 1, 1906, and on January 1, 1907, plaintiff, N. J. Hall, with his family, resides in Jackson county, Missouri, and that he had so resided there continually for more than ten years next preceding the institution of this suit; that on said January 1, 1906, said Hall was the owner of promissory notes of the aggregate value of $37,500, payable to the order of N. J. Hall at San Saba, Texas, and on January 1, 1907, said Hall was the owner of promissory notes of the value of $78,785, payable to the order of said Hall at San Saba, Texas; that the consideration of all of said notes was lands sold by said Hall to different purchasers, and that said lands were situated in San Saba county, Texas, and that the purchasers were residents of said county, and that the payment of said notes was secured by vendor's lien on the lands conveyed; that acting under the instructions of plaintiff, Hall, W. M. & Matt Allison, of San Saba, Texas, as his agents, negotiated the sale of said lands, prepared the deeds and notes for the different purchasers, and upon approval of said sales by said Hall, he, in his own person, executed deeds to said purchasers, and the cash payments and notes for deferred payments were delivered by the different purchasers to said W. M. & Matt Allison (when sale was closed), who deposited the money in local bank to the credit of said N. J. Hall, and from time to time advised him of the standing of his account with said bank, and said Hall from time to time moved said money to his home in Missouri, or otherwise used same as he wished. The notes taken by said W. M. & Matt Allison were left with them for collection, and any money afterwards paid on said notes was placed to the credit of said Hall in banks, and withdrawn by him as hereinbefore stated. And on January 1, 1906, said W. M. & Matt Allison held said land notes of the value of $37,500 at their office at San Saba, Texas, and on January 1, 1907, said W. M. & Matt Allison held in their office at San Saba, Texas, for said Hall said land notes of the value of $87,785; that all of said notes of the aggregate value of $116,285 were at all times held by said W. M. & Matt Allison subject to the order and control of plaintiff, Hall, and that said W. M. & Matt Allison neither had, nor exercised, any control over said notes, except to collect them as they might from time to time mature, or otherwise dispose of them as said Hall might direct. Upon final payment of any series of notes by the purchaser, said W. M. & Matt Allison would prepare and forward to plaintiff, N. J. Hall, at his home in Missouri, release of vendor's lien, which said Hall would execute and return to San Saba, Texas, for delivery to such purchaser. Plaintiff Hall first began selling off land and accepting said notes in part payment during the latter part of the year 1903, but most of the sales were made and notes taken during the years 1905-6. Upon sale of said lands, purchasers would pay part cash and execute aforesaid notes for deferred payments. Said W. M. & Matt Allison did not have any power of attorney or other writing authorizing them to sell said lands, execute deeds, releases, or other instruments, but prices and terms were fixed by said Hall and lands sold accordingly, and reported to him, and he would execute conveyances and authorize W. M. & Matt Allison to deliver deed upon payment of the cash consideration and execution of the notes according to the terms of each deed. Hall's purposes, as expressed by him at the time he first began the sale of said land, was that he was getting old and his business too much scattered, and he wanted to get it all together nearer his home in Missouri, and for this reason wanted to close out his lands in Texas. Said notes, aggregating $116,285 were left by plaintiff, Hall, with said W. M. & Matt Allison, and have been in their custody since they, at different times were executed; and any partial payments since made were credited on said notes and money placed in local bank to the credit of said Hall, and was afterwards withdrawn by him in person. Plaintiff, Hall, owned other property in San Saba county on January 1, 1906, and January 1, 1907, and has paid all taxes assessed against him for said two years, except taxes on the notes in question, but has refused to pay taxes on said notes, and has never rendered the same for taxation in this state, or in the state of Missouri. Plaintiff, Hall, has paid said W. M. & Matt Allison 5 per cent. commission for selling said lands, and they prepared all instruments necessary in connection with such sales, without any additional charge. It was the custom of said W. M. & Matt Allison to collect one-half of their 5 per cent. commission within a short time after making several land sales, but the other one-half was not demanded by them until after six or perhaps twelve months thereafter, as plaintiff could conveniently pay the same, or the condition of his finances derived from land sales and all other sources would justify, but the payment of the balance of this commission to said W. M. & Matt Allison was not in any way dependent or conditioned upon the collection of the notes in question or any of them. Said W. M. & Matt Allison, who are attorneys, also represented said Hall in other important legal matters in said county, but the lands sold and the notes in question had no connection with such other matters, or with any business of said Hall in said county, or in said state of Texas, nor were said notes used in any of said Hall's business in said state. It is further agreed, preliminary questions being waived, that the only issue submitted is whether or not said notes of the value of $116,285 are taxable for the years 1906 and 1907 as assessed, and, if said notes are held taxable, judgment be rendered against plaintiff, Hall, for the taxes due thereon, besides any legal interest, penalties, costs, etc.; and, if said notes be held not taxable, that judgment be rendered for plaintiff. Hall, and the temporary injunction heretofore granted be made perpetual, and for costs."

This embraces all of the facts except the evidence of the witness Allison, one of appellant's agents, which is as follows: "We kept Mr. Hall's bankbooks in our office. From time to time, when requested, advised him of the standing of his accounts. I have seen checks payable to a lumber company, also to A. J. Wise, a merchant at Richland Springs. These checks drawn on his individual bank account in which he also placed, besides proceeds from land notes, moneys received from other sources. Don't know whether lumber for barn or for what purpose, and don't know whether he checked upon this account for all of his expenses, but know A. J. Wise and lumber company checks and probably other checks incident to his remaining 3,000 acres in San Saba county."

W. M. Allison, for appellant. Leigh Burleson, for appellee.

FISHER, C. J. (after stating the facts as above).

There is no express statement in the facts that the notes taxed were negotiable in form, but the appellant in his brief so treats them and so will we. They were given for the purchase price of lands owned by appellant in San Saba county, Tex., and were secured by an express vendor's lien on such lands, and were payable there, where also the makers and purchasers resided. The notes were procured and taken from the purchasers by appellant's agents residing in San Saba county, and were kept by them for collection, and from the facts stated it could be fairly inferred that they have never been out of their possession. They were the agents of appellant that negotiated the sale of lands, and had possession of the notes when taxed; and there is no statement in the agreed facts that indicates that any limitation was intended to be imposed upon the power of these agents, at maturity, to take such steps as they may deem proper or was usual in such cases to enforce collection. Nor do the facts indicate that the purpose of the owner was to leave the notes temporarily in the possession of the agents within this state; but, upon the contrary, it is an inference from the facts that is reasonable that it was the purpose and intention to leave the notes permanently within this...