Harrison v. Sharpe

• Decision Date: 19 March 1919
• Docket Number: (No. 1497.)
• Citation: 210 S.W. 731
• Parties: HARRISON v. SHARPE.
• Court: Texas Court of Appeals

Page 731

210 S.W. 731

HARRISON v. SHARPE.

(No. 1497.)

Court of Civil Appeals of Texas. Amarillo.

March 19, 1919.

On Motion for Rehearing, April 16, 1919.

Appeal from District Court, Dallas County; E. B. Muse, Judge.

Suit by Mary A. Sharpe against Edward T. Harrison to set aside a judgment and all proceedings thereunder in a tax suit. Decree for plaintiff, and defendant appeals. Modified and affirmed.

Goggans & Smedley and J. N. Townsend, all of Dallas, for appellant.

Walter M. Nold and Spence, Haven & Smithdeal, all of Dallas, for appellee.

BOYCE, J.

This suit was brought by appellee, Mrs. Sharpe, a widow, against appellant, Edward T. Harrison, to set aside a judgment and all proceedings had thereunder in tax suit No. 3979b in the Forty-Fourth district court of Dallas county, styled the State of Texas v. Mrs. Mary A. Sharpe. This judgment was rendered on November 10, 1910, foreclosing a lien for the taxes of 1907 amounting to $7.61, and accrued costs, on two acres of land in the city of Dallas owned by Mrs. Sharpe. The judgment recited, and the return on citation showed, personal service of citation on the defendant in said cause. Thereafter, on April 14, 1911, the property was sold on order of sale issued out of said suit and bought by Edward T. Harrison, defendant in this suit, for $110, $30.03, of which amount was paid in discharge of the judgment and costs, and $79.97 deposited in the registry of the court. Plaintiff alleged that she was not served with citation, did not receive notice of sale, and had no notice whatever of said proceedings in the said tax suit until February, 1916. She disclaimed all interest in the said sum of $79.97, in the registry of the court, and tendered to defendant the sum of $33.03, with interest thereon, applied in satisfaction of the said judgment, and offered to pay whatever other sum the court might determine ought in equity to be paid the defendant upon the setting aside of said judgment. The defendant pleaded that service of citation was had in said cause, and that all proceedings therein were regular, and that he was an innocent purchaser for value.

Trial was had before the court, and the trial judge found that Mrs. Sharpe was not served with any citation in said suit, and that she had no notice whatever of said proceedings until the month of February, 1916, that the property at the time of its sale was of the value of not less than $3,500, and that the said sum of $110 paid therefor by the defendant Harrison was grossly inadequate, and that the said Harrison was therefore not an innocent purchaser of said property for value. Judgment was entered canceling said judgment and all proceedings thereunder upon payment to the defendant of the sum of $110, with interest from the date of his purchase.

It is first assigned that the evidence is insufficient to support the finding that Mrs. Sharpe was not served with citation in the tax suit because her testimony that she was not served is not sufficiently corroborated. It is the law that the return of a citation may not be impeached by the testimony of one witness unless strongly corroborated by other evidence. Gatlin v. Dibrell, 74 Tex. 36, 11 S. W. 908; Randall v. Collins, 58 Tex. 231; Pierce-Fordyce Oil Ass'n v. Staley, 190 S. W. 814; Godshalk v. Martin, 200 S. W. 535; Crawford v. Gibson, 203 S. W. 375; Swearingen v. Swearingen, 193 S. W. 442; Gallagher v. Teuscher & Co., 186 S. W. 409; McBride v. Kaulbach, 207 S. W. 576. So that the consideration of this assignment requires a summary of the evidence on this issue. In support of the return on the citation, in addition to its own recitals, which showed that it was served on July 14, 1909, was the testimony of the deputy sheriff, Roddy, who made the return, to the effect that he did serve the citation in person on Mrs. Sharpe. He testified that he called at her home several times for the purpose of making service; that on each occasion prior to the time when service was had he was met at the door by a young woman, about 30 years of age, who informed him that Mrs. Sharpe was out of town, on a visit, "up North," was his recollection of the statement; that on the occasion of the service a lady appeared in answer to his summons, who informed him that she was Mrs. Sharpe, and he identified Mrs. Sharpe in the courtroom as being in his opinion the lady upon whom such service was made at this time. Mrs. Sharpe denied ever having been served or having notice of any kind of such proceedings until they were discovered by procuring an abstract of title in contemplation of the sale of said property in February, 1916. She testified that she did not leave home on a visit during the summer of 1909, and that she and her son lived in her home together, and no other lady was ever there, except that her married daughter made her an occasional visit, but that her daughter was never at her home while she herself was off on a visit. It appears from other testimony that Mrs. Sharpe purchased this property in 1905 for consideration of $3,000, $2,500 in cash, and notes running four years for the balance. There was a nice cottage thereon at the time of the purchase, and she and her son, a young man between 25 and 30 years of age, lived in this as a home until long after the proceedings were had in the tax suit. During this time the son was working in a seed store in the city of Dallas, and paid the notes due on the property out of his earnings, and also contributed to his mother's support during such time. He and his mother were interested together in the property, and about the year 1912 the mother deeded a part of it to the son, who thereupon placed other valuable improvements thereon. Various parcels of the land were conveyed to other persons, who also built valuable improvements on the premises. All taxes due the city had been paid for each year after the purchase up to the time of the trial, and all state and county taxes were paid, except the taxes for the year 1907; such payments being regularly made in the month of January in each year before they became delinquent. It appears from the testimony of both the son and the mother that the son attended to the payment of the taxes and such matters, and both mother and son testified that they thought the state and county taxes for the year 1907 had been paid. The son testified that his mother did not tell him of the service of any papers on her; that his mother always kept her debts paid and was never sued in her life, "and if an officer had served a citation on her she would have come right down to the store to see me about it." He also testified that, after the purchase of the place in 1905, "my mother lived on this place continuously, I think, up until the year 1912, when she went to El Paso for a short while to visit her sister, again resuming her residence there when she came back. I do not remember exactly when my mother left her place again," etc. It reasonably appears that this property during this time represented the greater part, if not all, the material resources of the mother and son.

These facts suggest the corroboration of Mrs. Sharpe's testimony in these particulars: First, that she was not away on a visit in the summer of 1909, so that the conversations with some lady detailed by the deputy sheriff were not likely to have occurred; second, that it was more than probable that the mother, if she had been served with citation, would have called the matter to her son's attention, and the fact that she did not do this tends to disprove that she was served; third, that all the actions of the parties, mother and son, are inconsistent with a knowledge on their part of the existence of this suit and the proceedings which followed it.

As to the first, it is the rule that the corroborating evidence must be from other sources than from the witness who requires corroboration. Gabrielsky v. State, 13 Tex. App. 428; Enc. of Evidence, vol. 3, p. 675; Wigmore on Evidence, § 2059. Had the son or daughter corroborated by their positive testimony that of the mother that she was not away on a visit during the summer of 1909, there would have been no doubt that such corroboration might have been entitled to great weight. There may be an inference from the testimony of the son, which we have quoted above, that he meant thereby that his mother was not away from home, even on a visit, during the time stated.

As to the second, the relation between the mother and son and the circumstances surrounding their living together were such as to suggest that it was highly probable, if not certain, that if the mother had been served with a citation she would have consulted her son about it. It is natural to suppose that the mother, under the circumstances stated, would have been so excited by the service of citation upon her that she would have inevitably told her son. The trial judge had the parties before him and could well judge of this matter. A New York case, Taylor v. Crowinshield, 5 N. Y. Leg. Obs. 209, to which we do not have access, is referred to by Chamberlayne on Evidence, vol. 4, § 3210, as holding that—

"On a question whether a testator alleged to have mortgaged certain property borrowed a large sum of money, his habits of living and doing business may properly be received in the absence of more primary evidence."

The footnote discloses that the evidence referred to showed that the mortgagor's financial condition was such that he was under no necessity of borrowing the money in question; that he was lending money instead of borrowing, was of retired habits, averse to business, "relying on the advice and agency of others, to whom it is established he did not apply on this occasion." Appellant relies on the case of McBride v. Kaulbach, supra, as denying any weight to this character of evidence. The facts in that case were not nearly so strong as in this. There the father was transacting his own business, and not living with the children. So...