Higgins v. Bordages

• Decision Date: 08 April 1895
• Citation: 31 S.W. 52
• Court: Texas Supreme Court
• Parties: HIGGINS et ux. v. BORDAGES.<SMALL><SUP>1</SUP></SMALL>

Page 52

31 S.W. 52

HIGGINS et ux. v. BORDAGES.¹

Supreme Court of Texas.

April 8, 1895.

Error to court of civil appeals of First supreme judicial district.

Action by T. R. Bordages against William Higgins and wife of trespass to try title. From a judgment of the court of civil appeals (28 S. W. 350) affirming a judgment for plaintiff, defendants bring error. Reversed.

W. H. Ford and Greer & Greer, for plaintiffs in error. O'Brien & O'Brien and J. F. Lanier, for defendant in error.

BROWN, J.

The city of Beaumont was duly incorporated under the general laws of the state. The city adopted an ordinance for the construction of sidewalks in the city, providing that if the abutting property owner, upon notice, failed to make the sidewalk, the city would construct it, and the cost should constitute a lien upon the lot abutting upon it, and providing also for a foreclosure of the lien by suit in any court having jurisdiction. Henry Higgins and Mary, his wife, were living at the time upon the lot in suit as their homestead, and continued to live upon it as a homestead from that time to the time of the trial of this case. Notice was given to Henry and Mary Higgins to build the sidewalk; and, they having failed to do so within the time prescribed by the ordinance, the city had the sidewalk constructed at a cost of $20. Higgins refusing to pay the costs of construction, suit was instituted in the district court of Jefferson county by the city of Beaumont against Henry and Mary Higgins, as husband and wife, to foreclose the lien upon the lot. The petition in that case alleged that Henry and Mary Higgins were husband and wife; that they occupied the lot at the time of the construction of the sidewalk; and the judgment entered described the lot as occupied by Henry and Mary Higgins. The petition alleged that the city complied with the requirements of the general law and the ordinance passed by the city council in making the sidewalk. Judgment was rendered by default against William and Mary Higgins, foreclosing the lien of the city of Beaumont for the cost of said sidewalk upon the lot in question. An order of sale was issued, and the lot sold, when the plaintiff, Bordages, purchased it for $35. He says in his evidence in this case that the lot was worth $600. He says, also, that he knew at the time that it was the homestead of the defendants, William and Mary Higgins. Bordages sued Higgins and wife for the lot in trespass to try title; and the district court of Jefferson county, upon a trial before the court, gave judgment for plaintiff for the lot, from which judgment the defendants, Higgins and wife, appealed to the court of civil appeals, which affirmed the judgment of the district court. 28 S. W. 350.

If the district court of Jefferson county had jurisdiction of the subject-matter involved in the suit of Beaumont v. William and Mary Higgins, then the judgment is not subject to collateral attack, and the judgment in this case must be affirmed. If, however, the court did not have jurisdiction of the subject-matter in that suit, then that judgment was void, and a sale under it did not confer title upon Bordages, and the judgment in this case must be reversed. The petition having alleged that William and Mary Higgins were husband and wife, and that they occupied the land, in effect alleged that the lot was their homestead, which is in effect the recital of the judgment, besides which the proof fully establishes that fact without contradiction.

The court did not have jurisdiction of the amount of the demand, and, if the assessment for sidewalk did not by law give a lien upon the lot, then the court had no jurisdiction. It has been held by this court in a number of cases that under the charter of the city of Galveston, in which there is language identical with article 376, Rev. St., the city had a lien for like claim. Assuming, then, that ordinarily—that is, if the property were not homestead—the lien would exist in favor of the city, the question presented for determination is, can the legislature give a lien upon a homestead for such assessments? The constitution of this state (article 16, § 50) reads as follows: "The homestead of a family shall be and is hereby protected from forced sale, for the payment of all debts except for the purchase money thereof or a part of such purchase money, the taxes due thereon or for work and material used in constructing improvements thereon, and in this last case only when the work and material are contracted for in writing, with the consent of the wife given in the same manner as is required in making a sale and conveyance of the homestead. * * * No mortgage, trust deed or other lien on the homestead shall ever be valid except for the purchase money therefor, or improvements made thereon, as hereinbefore provided, whether such mortgage or trust deed or other lien shall have been created by the husband alone or together with the wife." By the terms of the foregoing section of the constitution, the homestead is unmistakably exempted from forced sale for every kind of indebtedness which is not embraced in one of the three classes of debts named therein. The claim for which suit was instituted in the case of City of Beaumont v. William and Mary Higgins was not for the purchase of the lot, nor for a part of the purchase money; neither was it for improvement thereon under a contract made as required by the constitution. It necessarily follows that it cannot be enforced upon the homestead unless it comes within the meaning of "taxes due on it." We will examine the question as to whether or not the assessment for building sidewalks is a "tax," within the terms of the constitution as above quoted.

Section 9, art. 8, of the constitution contains this provision: "No county, city or town shall levy more than twenty five cents for city or county purposes, and not to exceed fifteen cents for roads and bridges, on the one hundred dollars valuation, except for the payment of debts incurred prior to the adoption of this amendment, and for the erection of public buildings, street, sewer, and other permanent improvements not to exceed twenty five cents on the hundred dollars valuation in any one year, and except as in this constitution otherwise provided." If the sidewalk improvement is a tax authorized by the constitution, it must be embraced in the provision for streets, is limited in amount to 25 cents on the $100, and must be levied as an ad valorem tax. Such a tax might be levied under this section of the constitution if authorized by law, but the assessment in this case is clearly not an exercise of the power granted in the language above quoted. If it rested upon that for its support, it would be void, because it is not uniform and equal, and exceeds the limit in amount. Section 5, art. 11, of the constitution is in this language: "Cities having more than ten thousand inhabitants may have their charters granted or amended by special act of the legislature, and may levy, assess and collect such taxes as may be authorized by law, but no tax for any purpose shall ever be lawful, for any one year, which shall exceed two and a half per cent. of the taxable value of the property of such city," etc. The city of Houston, having more than 10,000 inhabitants, levied under its charter taxes to the amount of 2 per cent., and, in addition, ordered the paving of streets, and that a part of the cost be assessed upon the abutting property. Such assessment having been made upon the property of a citizen which amounted to about 2½ per cent. of its value, making 4½ per cent. when added to the general tax, suit was instituted to enforce it. In the case of Taylor v. Boyd, 63 Tex. 533, the validity of the assessment was contested upon the ground, among others, that it, with other taxes levied, exceeded the constitutional limit. In a well-considered opinion by Judge Stayton, this court held that the assessment was not a "tax," within the meaning of the language "tax for all purposes"; and it was enforced against the property. If the assessment is not included in this broad language, then it is certainly not a "tax," within the meaning of that word as used in any part of the constitution. If it is a tax for any purpose, it could not be held not to be embraced in the language there used. A tax for any purpose must be within the terms "tax for all purposes." Section 1, art. 8, of the constitution of this state contains this language: "Taxation shall be uniform and equal. All property in this state, whether owned by natural...