Kubena v. Hatch

• Decision Date: 27 February 1946
• Docket Number: No. A-756.,A-756.
• Citation: 193 S.W.2d 175
• Parties: KUBENA et al. v. HATCH et al.
• Court: Texas Supreme Court

193 S.W.2d 175

KUBENA et al. v. HATCH et al.

No. A-756.

Supreme Court of Texas.

February 27, 1946.

Rehearing Denied April 3, 1946.

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

Trespass to try title by Narcissus Hatch and her husband against Mrs. Lucy Kubena and her husband, wherein defendants in a cross-action asserted title under their tax deed. To review a judgment of the Court of Civil Appeals, 190 S.W.2d 175, which reversed a judgment for defendants, defendants bring error.

Judgment of Court of Civil Appeals reversed and that of trial court affirmed.

Moss & Moss, of LaGrange, for petitioners.

Fertsch & Fertsch and Marvin D. Fertsch, all of Hallettsville, for respondents.

FOLLEY, Justice.

This is a suit in trespass to try title involving 57 acres of land in Fayette County. It was filed by respondents, Narcissus Hatch and husband, Robert Hatch, against petitioners, Lucy Kubena and husband, John A. Kubena. The trial resulted in a judgment for petitioners, which was reversed by the court of civil appeals with instructions that the trial court render judgment for respondents. 190 S.W.2d 175.

Robert Hatch inherited the land as his separate property in 1916. It was thereafter continuously occupied by him and his wife as their homestead until they were ejected in 1944 at the institution of this suit. During their occupancy taxes on the property for 1936 and six prior years became delinquent. In 1938 the State of Texas, for itself and on behalf of Fayette County, filed suit against Robert Hatch for these unpaid taxes, seeking foreclosure of a tax lien on the land. Narcissus Hatch was not made a party defendant. In May 1938 judgment was rendered against Robert Hatch for $175.77 and for foreclosure of a lien upon the land. Included in the foreclosure was the sum of $19.50 for poll taxes levied against both Robert and Narcissus Hatch. No question of homestead was urged as a defense to the suit nor was the matter in any manner adjudicated. The land was sold under order of sale to Lucy Kubena for $210.

In the instant suit respondents challenged the validity of the proceedings in the tax suit because Narcissus Hatch, who had a homestead interest in the property, was not a party defendant, and because there was a foreclosure for poll taxes in violation of Article 16, Section 50, Constitution of Texas, Vernon's Ann.St. which prohibits the sale of the homestead for any taxes except those due thereon. The court of civil appeals sustained these contentions, holding that because of the poll taxes the trial court was without jurisdiction to foreclose the lien and for that reason the whole judgment was void.

We agree with the court of civil appeals that the trial court in the former suit was unauthorized to foreclose the lien for the poll taxes and that such portion of the judgment is void, not only as to the wife who was not a party, but as to the husband who was a party. Higgins v. Bordages, 88 Tex. 458, 31 S.W. 52, 53 Am. St.Rep. 770. We are not in accord, however, with the further holding that by reason of this partial invalidity the judgment is void as a whole.

The provision of the Constitution which prohibits the sale of the homestead for the payment of debts contains certain exceptions, one of which is that the homestead is not protected from forced sale for taxes due thereon. All of the demand involved in the forclosure suit except the poll taxes was for taxes, interest, penalties and costs, legally chargeable against the homestead. For this debt the homestead, like other property, must bear its proportionate share of the burdens of government; and to enforce the payment of these taxes the taxing units held a valid lien under both the constitution and statutes of this state. City of San Antonio v. Toepperwein, 104 Tex. 43, 133 S.W. 416; Article 8, Section 15, Constitution of Texas; Articles 7172, 7279 and 7320, Vernon's Ann.Civ.St.

In suits against the husband for foreclosure of a tax lien on the homestead the wife is not a necessary party for the reason that the plea of homestead would be no defense to the suit. Jergens v. Schiele, 61 Tex. 255; City of San Antonio v. Berry, 92 Tex. 319, 48 S.W. 496; Cooley v. Miller, Tex.Com.App. 228 S.W. 1085, and authorities cited. Thus Narcissus Hatch was not a necessary party to the foreclosure suit for that portion of the claim which constituted a debt against the homestead. She was a necessary party only for the purported foreclosure for the poll taxes. Consequently, we must determine whether her status as an indispensable party for the latter claim deprived the court of jurisdiction to adjudicate the remainder of the demand for taxes lawfully due upon the homestead in a portion of the cause of action to which she was not a necessary party.

The court of civil appeals seems to have relied chiefly upon the case of Tate v. McGraw, Tex.Civ.App., 70 S.W.2d 467, 468, modified 73 S.W.2d 559, in determining that the judgment was void as a whole. That case is similar to this in that it involved a collateral attack upon a judgment against Tate foreclosing a lien upon his homestead for poll taxes as well as ad valorem taxes. It was there held that as the poll taxes constituted no lien upon the homestead the attempted foreclosure was unauthorized and that the order of sale and sheriff's deed were void. That case, however, may be distinguished from this in one important respect. The opinion shows that on appearance day, before judgment was rendered, Tate paid the district clerk all accrued costs in the suit; paid the tax collector all of the taxes, penalties and interest claimed by the state; and received a redemption receipt evidencing such payment. Commenting on these facts the court stated:

"* * * In this changed status, we think it became the plain duty of the official in charge of the litigation to have dismissed the suit, as the state had no lien upon or salable interest in appellant's land after the cause of action was satisfied."

It is only upon the theory that no lien of any kind existed against the homestead when the foreclosure judgment was rendered that the holding in Tate v. McGraw may be sustained. The inclusion of the poll taxes added no vice to the foreclosure proceedings because no lien existed for any part of the alleged debt whether for ad valorem or poll taxes. In the absence of a valid lien the foreclosure was forbidden by the constitution regardless of the nature or amount of the money demand. Thus the poll taxes were immaterial.

Contrary to the common law rule that a judgment is considered as an entirety and must be vacated as a whole, it is well settled in this state that a judgment may be void in part and valid in part provided the valid portion is not so dependent on the invalid as to fall with it. City of San Antonio v. Berry, 92 Tex. 319, 48 S.W. 496; Hemphill v. Watson, 60 Tex. 679; State Mortgage Corporation v. Ludwig, 121 Tex. 268, 48 S.W.2d 950; Boone v. Hulsey, 71 Tex. 176, 9 S.W. 531; Cooksey v. Jordan, 104 Tex. 618, 143 S.W. 141; Foote v. Sewall, 81 Tex. 659, 17 S.W. 373; Missouri-Kansas-Texas R. Co. of Texas v. Pluto, 138 Tex. 1, 156 S.W.2d 265; Levy v. Roper, 113 Tex. 356, 256 S.W. 251; LeWright v. Reese, Tex.Civ.App., 223 S.W. 270, error refused; Bevill v. Young, Tex.Civ.App., 167 S.W.2d 573, writ refused; Taylor v. Dinsmore, Tex.Civ.App., 114 S.W.2d 269, writ refused.

The first three cases cited in the...