J. W. House v. Stone

• Decision Date: 15 December 1885
• Docket Number: Case No. 1793.
• Citation: 64 Tex. 677
• Parties: J. W. HOUSE ET AL. v. H. P. STONE.
• Court: Texas Supreme Court

64 Tex. 677

J. W. HOUSE ET AL.

v.H. P. STONE.

Case No. 1793.

Supreme Court of Texas.

Dec. 15, 1885.

APPEAL from Tarrant. Tried below before the Hon. A. J. Hood.

This is a suit, filed April 25, 1882, in the district court of Tarrant county, by H. P. Stone against appellants, J. W. House and wife, Fannie W., in an action of trespass to try title to lot No. 13, in block A 2, of Daggett's addition to the city of Fort Worth, being twenty-five by one hundred feet in size, and also a prayer for rents.

The defendants filed a general and special demurrer and a general denial, and a plea suggesting possession in good faith for more than one year and having made permanent, valuable improvements on said lot in the sum of $1,150.

The case being tried by the court on September 4, 1882, judgment was rendered for the plaintiff, H. P. Stone, and against defendants, J. W. and Fannie House, for the recovery of the lot in suit and for rents at $5 per month, less $22.76, paid by defendants as taxes, and for costs; defendants excepted and gave notice of appeal, and assigned errors, and brought the case before this court for revision.

The errors assigned were that--

1st. The court erred in excluding evidence of the kind and value of improvements made on the lot, in good faith, by the defendants.

2d. The court erred in giving judgment on the evidence and upon the law applicable to the case.

Jas. C. Scott, for appellants.

No briefs on file for appellee.

WALKER, P. J. COM. APP.

The only questions involved in this case arise out of the effect to be given to two tax deeds conveying the property in dispute to one E. M. Daggett, under whose quitclaim deed to Mrs. Fannie W. House the defendants claim title, or, failing in that, the value of improvements made by the defendants on the lot.

The lot was sold for the unpaid state and county taxes for 1877, and for the taxes alike due and unpaid to the city of Fort Worth for the same year. The deeds were made respectively by the state and county assessor and collector of taxes, and the city collector of Fort Worth; that made by the former on May 10, 1878; that by the latter on April 6, 1878. The property was assessed against an “unknown owner,” and was so sold and conveyed.

We will notice first the second ground of error, to the effect that the evidence warranted a judgment in favor of the defendants sustaining the validity of the tax titles.

In order to constitute a valid tax sale of unrendered property subject to taxation, it is essential that the proper officer shall substantially comply with section 14 of “An act to define the duties, powers, qualifications of assessors of taxes, and to regulate their compensation.” Acts of 1876, p. 269; R. S., art. 4711. That section provides as follows: “If the assessor of taxes discover any real property in his county, subject to taxation, which has not been listed to him, he shall list and assess such property in the manner following, to wit: First, the name of the owner; if unknown, say “unknown.” … Seventh, the number of lot or lots. Eighth, the number of the block. Ninth, the true and full value thereof. Tenth, the name of the city or town; and give such other description of the lot or lots, or parcels of land, as may be necessary to better describe the same, and such assessment shall be as valid as if rendered by the owner thereof.”

The only evidence offered by the defendants to show an assessment and listing of the property in question is thus stated in the statement of facts, viz.: “The present assessor for Tarrant county produced the abstract records of his office in which the assessor assessed the property in question in a blank book, and this was the only effort at assessing said plat and property in question, in the following manner, having no words or figures other than as appears on this plat. The following is a perfect fac simile.”

The plat referred to consisted of a diagram on the margin of ruled columns representing a square figure divided in two parts by a perpendicular line; each of these halves being subdivided by parallel lines equidistant from each other, including in all sixteen oblong parallelograms, and each subdivision numbered from one to sixteen inclusive, respectively. Across or on the face of this figure or diagram was marked “A. 2.” The diagram was doubtless intended to represent a block of lots; and “A. 2.” meant “Addition”--“block number 2.” The first left hand column contained the figures “1877.” The three remaining columns to the right are thus represented:

+-----------------------------------+
                ¦W. J. Allen.?? ¦5            ¦500  ¦
                +---------------+-------------+-----¦
                ¦E. M. Daggett  ¦1, 2, 3 and 4¦200  ¦
                +---------------+-------------+-----¦
                ¦W. J. Finley   ¦6            ¦200  ¦
                +---------------+-------------+-----¦
                ¦Jackson Galway ¦7, 8         ¦650  ¦
                +---------------+-------------+-----¦
                ¦J. J. Jarvis   ¦4            ¦200  ¦
                +---------------+-------------+-----¦
                ¦D. Lewis       ¦12           ¦250  ¦
                +---------------+-------------+-----¦
                ¦W. E. Organ    ¦14           ¦200  ¦
                +---------------+-------------+-----¦
                ¦R. Suley       ¦16           ¦2,000¦
                +---------------+-------------+-----¦
                ¦J. D. Templeton¦11           ¦250  ¦
                +---------------+-------------+-----¦
                ¦Unknown        ¦9            ¦300  ¦
                +---------------+-------------+-----¦
                ¦Unknown        ¦10           ¦250  ¦
                +---------------+-------------+-----¦
                ¦Unknown        ¦13           ¦250  ¦
                +---------------+-------------+-----¦
                ¦Unknown        ¦15           ¦200  ¦
                +-----------------------------------+
                

The schedule thus presented was probably intended to represent the owners and the unknown owners of the lots indicated by the numbers opposite their names and opposite to the word “unknown,” and also the amount of value of the respective lots as assessed by the assessor of taxes; but it failed to comply with the requirements of the statute above quoted, and it does not afford such evidence of a valid assessment of the property as will support a sale of it for taxes. It contains no recitals which show that the assessor did, as such officer, make the assessment which the schedule and plat indicates he may have designed to make. The statute contemplates the performance by him of a formal, solemn act which is to constitute the basis for enforcing, if necessary for the collection of the taxes due on property, the divestiture of the owner's title to it; and the act should clearly manifest upon its face its character and intention by appropriate recitals and statements, if its validity as an assessment is left to stand alone upon such schedule disconnected from any other evidence than its existence in a blank book in which the assessor assessed the property in question.

Whether such assessments are made by the officer and entered in books kept as records in his office or otherwise, the evidence of the act of assessment of the property must be made clearly to appear. If entered by the assessor in a blank book kept in his office, the mere use of such a book for such a purpose in no wise dispenses with the necessity of his showing in his entries that he officially and solemnly acted in the premises by a recital of the doing of all such acts as were necessary to be done in order to subject the property thus assessed by him to sale for taxes due on it.

The authority for the officer's making the assessment is that the property has not been listed to him, as declared in section 14, Acts 1876, supra (R. S., art. 4711), and we think the assessment made by the assessor should show, in some appropriate manner, that it was done by him in accordance with such authority, and that the assessment thus made was of property falling within the category of such that was thus subject to taxation, and had accordingly been assessed by him.

The tabular schedule in evidence failed to show that it was the result of an assessment of real property subject to taxation, made by the assessor, nor did it otherwise identify the property assessed, unless by mere inference that the diagram represented a block of lots, and that the columns represented the owners of them, with the assessor's valuation thereof. There is nothing on the face of the paper which refers the matter contained in it to any character of transaction, or which connects the various items of names and figures with any particular kind of property. Considered abstractly, by itself, it might as well refer to matters wholly disconnected with the subject of assessment of real property for unpaid taxes, or unrendered taxable property.

The statute itself establishes and prescribes the rule of certainty in respect to the identification of the property to be assessed, and requires the assessor to list and assess it in accordance therewith. This requirement contemplates a written list and assessment, and it must be sufficient to afford a basis for the further proceedings which the law contemplates may result in a sale of the property thus listed and assessed. On this branch of the subject, Burroughs in his treatise on taxation, section 96, says: “It must not be supposedthat because, in the class of cases we are considering, the land is proceeded against and the name of the owner is not essential, there is any less necessity for a description of the land by which it can be readily identified. There must be something more than parol proof to show that a particular tract was meant to be assessed. This may consist of a name connected with a title of some kind once existing in connection with the land, or a number, or a known designation, an adjoinder, a settlement, or some circumstance to lead to a knowledge of the land assessed. It does not help the matter to call it a proceeding in rem. A thing to be the subject of a legal proceeding must have some means of ascertainment. Parol evidence cannot be used to show that a tract on the list was intended for a particular tract. Titles which should rest in the breast of the officer...