Harris v. Hill

• Decision Date: 15 March 1909
• Citation: 117 S.W. 907
• Parties: HARRIS et al. v. HILL.
• Court: Texas Court of Appeals

117 S.W. 907

HARRIS et al. v. HILL.

Court of Civil Appeals of Texas.

March 15, 1909.

Appeal from District Court, Panola County; W. C. Buford, Judge.

Action by N. I. Harris and another against W. D. Hill. From a judgment granting insufficient relief, plaintiffs appeal. Reversed and rendered.

The A. Netherly survey of 160 acres, in Panola county, was patented to R. S. Board as assignee. By its petition filed in the district court of said county July 23, 1902, the state commenced an action against the "unknown owner" of the land to recover the taxes due thereon and unpaid for the years 1886 to 1901, inclusive, together with interest, costs, and penalties which had accrued thereon, aggregating the sum of $41.30. In the petition the land was described as a tract of 160 acres, the "A. Netherly headright, situated in Panola county, on the west side of the Sabine river about 18 miles northwest from the town of Carthage," and by its metes and bounds. Attached to the petition was the affidavit of the county attorney, to the effect that the averments contained in the petition were true to the best of his knowledge and belief. July 24, 1902, a citation or notice for service by publication on said unknown owner was issued. It was directed as follows: "To unknown owners and to all persons owning or having or claiming any interest in the following described land delinquent to the state of Texas and county of Panola, for taxes, to wit: One hundred and sixty acres of land, the A. Wetherby headright in Panola county, Texas, on west side Sabine River about 18 miles northwest from the town of Carthage." No other description of the land was given in the notice. As published in a newspaper for service on the unknown owner, defendant in the suit, the notice was directed as follows: "To unknown owners and to all persons owning or having or claiming any interest in the following described land delinquent to the state of Texas and county of Panola for taxes, to wit: One hundred and sixty acres of land, the A. Weatheraby headright in Panola county, Texas, on west side of Sabine river about 18 miles northwest from the town of Carthage." No other description of the land or its owners was given in the notice. Without service on the owners of the land of any other notice, on April 3, 1903, the state recovered a judgment against them for said sum of $41.30 and foreclosing a lien on the land as described in its petition. At a sale made in executing the judgment appellee, Hill, became the purchaser of the land it seems. Appellant N. I. Harris, owning an undivided interest in the land, within two years after the purchase thereof by appellee sought to redeem same from said sale, and tendered to appellee double the sum paid by him as the purchaser thereof at the tax sale. Appellee acknowledged said appellant's right to redeem to the extent of her undivided interest in the land, but denied her right, in the absence of authority from the owners of the other undivided interests, to redeem as to their interests. Said appellant N. I. Harris, joined by her husband, then commenced this suit. From a judgment in their favor canceling the deed conveying the land to appellee, the latter appealed to this court. Because of an error of the trial court in sustaining a demurrer to appellee's answer, including a general denial, and in the absence of evidence rendering the judgment against him, it was reversed, and the cause was remanded for a new trial. 108 S. W. 489. In the court below the pleadings were then amended; the owners of the other undivided interests making themselves parties plaintiff. The new trial resulted in a verdict and judgment in favor of appellant N. I. Harris against appe...