Hall v. Miller

• Decision Date: 10 February 1909
• Citation: 115 S.W. 1168
• Parties: HALL v. MILLER, Tax Collector.
• Court: Texas Supreme Court

115 S.W. 1168

HALL v. MILLER, Tax Collector.

Supreme Court of Texas.

February 10, 1909.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Action by N. J. Hall against Hugh Miller, tax collector. From a judgment of the Court of Civil Appeals (110 S. W. 165), affirming a judgment for defendant, plaintiff brings error. Affirmed.

W. M. Allison and N. A. Rector, for plaintiff in error. Leigh Burleson, for defendant in error.

BROWN, J.

N. J. Hall filed this suit in the district court of San Saba county to restrain Miller, the tax collector of the county, from enforcing the collection of certain taxes assessed against Hall in that county. The case was tried before the judge, who rendered judgment against Hall, which was affirmed by the Court of Civil Appeals. The facts were agreed to as follows: "On January 1, 1906, and on January 1, 1907, plaintiff, N. J. Hall, with his family, resided in Jackson county, Mo., and that he had so resided there continually for more than 10 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, Tex., 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, Tex. 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, Tex., 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, Tex., 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, Tex., and on January 1, 1907, said W. M. & Matt Allison held in their office at San Saba, Tex., for said Hall said land notes of the value of $78,785. 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, Tex., 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 1905-06. 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, were 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 6, or perhaps 12, 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's 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."

Counsel for plaintiff in error contend that the notes involved in this litigation are not included as subjects of taxation in the statutes of this state; that is, Hall being a non-resident of this state, this property, although situated within the state, is not subject to be taxed. Article 8, § 1, of the Constitution of the state contains this provision: "All property in this state, whether owned by natural persons or corporations, other than municipal, shall be taxed in proportion to its value, which shall be ascertained as may be provided by law." This language is broad enough to embrace every kind and class of property within the limits of the state over which the state has jurisdiction, whether it be owned by citizens or nonresidents. The policy declared by the Constitution was also expressed by the Legislature in article 5061, Rev. St. 1895, as follows: "All property, real, personal or mixed, except such as may be hereinafter expressly exempted, is subject to taxation and the same shall be rendered and listed as herein prescribed." That article is in harmony with the Constitution, and was enacted for the purpose of putting that provision of the Constitution into effect. It is claimed for plainti...