Land v. Banks

• Decision Date: 17 March 1922
• Docket Number: (No. 760.)
• Citation: 241 S.W. 299
• Parties: LAND v. BANKS.
• Court: Texas Court of Appeals

241 S.W. 299

LAND v. BANKS.

(No. 760.)

Court of Civil Appeals of Texas. Beaumont.

March 17, 1922.

Rehearing Denied May 3, 1922.

Appeal from District Court, Angelina County; L. D. Guinn, Judge.

Trespass to try title by Stanley Banks against J. W. F. Land. Judgment for plaintiff for recovery of the land, but allowing defendant the cost of improvements made thereon in good faith, and defendant appeals from the judgment awarding the land to plaintiff, and plaintiff files cross-appeal from the judgment awarding the cost of the improvements. Affirmed.

Norman, Shook & Gibson, of Rusk, for appellant.

R. B. Banks, of San Antonio, for appellee.

HIGHTOWER, C. J.

This was an action of trespass to try title by the appellee, Stanley Banks, against appellant, J. W. F. Land, and one W. G. Matthews. The suit was filed in the district court of Angelina county October 26, 1917, and involves 269 acres of land, a part of the James Moffett one-third league survey located by virtue of certificate No. 271 issued by the board of land commissioners of Nacogdoches county to James Moffett in 1838, and the survey was patented by the state of Texas to James Moffett in 1847. In his petition, as plaintiff, the appellee claimed ownership to the entire 269 acres here involved, and described the same by specific metes and bounds. Appellant, Land, as defendant, answered by certain special exceptions, plea of not guilty, and also interposed as a defense the statutes of limitation of three and five years. In addition he specially pleaded improvements in good faith, a plea of estoppel, and also that he had paid out approximately $90 taxes on the land since claiming it, and he alleged that appellant should be required to imburse him for such taxes. He also vouched in as a warrantor the defendant G. W. Matthews, and prayed for recovery against Matthews in the event he (appellant) should be cast in the suit. Matthews filed no answer.

The case was tried before the court without a jury, and judgment was rendered in favor of appellee, Banks, against appellant, Land, for the 269 acres of land sued for, and in favor of appellant on his suggestion of improvements in good faith for $900. It is unnecessary to further mention Matthews. Land excepted to the judgment, and gave notice of appeal, which he has duly prosecuted to this court, and Banks has filed a cross-assignment by which he complains of the action of the trial court in awarding Land anything on his suggestion of improvements in good faith. Appellant, Land, presents a number of assignments of error, some of which are followed by several different propositions, but after careful consideration we have reached the conclusion that the main and controlling contentions made by appellant may be said to present but three questions.

It is shown by the record before us, without dispute, that the parties claimed the land in controversy from a common source, namely, one John Crutcher, who in 1854 acquired title to a one-half undivided interest in the Moffett survey if, in fact, he ever acquired any title at all. It was and is the contention of appellee that title to the land in controversy never passed out of John Crutcher during his lifetime, and that such title was inherited by his heirs subsequent to his death, and that appellee holds the title to same by purchase through mesne conveyances from such heirs.

Appellant, Land, claims the property under a tax deed executed by J. C. Everitt, as tax collector of Angelina county, to H. G. Lane on July 16, 1881. That deed was introduced in evidence, and recites that the Crutcher interest in the Moffett tract was sold for taxes due on the land for the years 1878 and 1879, amounting to $7.60.

The undisputed evidence adduced upon the trial below was sufficient to show that John Crutcher lived in Fayette county, Tex., where he died prior to or about the commencement of the Civil War. The evidence further shows affirmatively that John Crutcher had never married, and that he left certainly as one of his heirs a brother, Henry Crutcher, who died in 1876. The evidence fails to show affirmatively whether either of John Crutcher's parents survived him, and whether there were any other brothers or sisters. In October, 1909, Mary D. Crutcher and Kate Crutcher Hudson, the latter being joined by her husband pro forma, executed a deed to E. G. Banks conveying all the interest that was claimed by the grantors in the Moffett survey by inheritance from Henry Crutcher, who was the brother, as before stated, of John Crutcher. Mary D. Crutcher, the record shows, was the surviving widow of Henry Crutcher, and Kate Crutcher Hudson the daughter of Henry Crutcher. The record shows that whenever interest in the Moffett survey was inherited by Henry Crutcher was in Mary D. Crutcher and Kate Crutcher Hudson at the time of the execution of said deed to E. G. Banks.

The first and second assignments of error present practically the same legal question, which is, in substance, that the judgment of the court was erroneous because appellant showed a good and perfect title to the land in controversy from the sovereignty of the soil, and by mesne conveyances, under a valid tax deed from the tax collector of Angelina county to H. G. Lane.

In reply to this contention on the part of appellant, it is appellee's contention that appellant failed to show the necessary prerequisites to support the tax deed from the tax collector to Lane, under which alone appellant asserts title, and that therefore said deed was ineffectual to convey to Lane title to any portion of the interest owned in the Moffett survey by John Crutcher or his heirs, and that such tax deed in no manner affected the Crutcher title. Appellee further contends that the tax deed to Lane was also void for lack of sufficient description.

As bearing on the question as to whether the tax deed from the tax collector to Lane had the effect to pass the title to the Crutcher interest in the Moffett survey, we find in the statement of facts, among other things, the following, from which we quote:

"It was proven on the trial of the case that J. C. Everitt, the person who was tax collector at the time of the sale of the land in question for taxes, is dead and has been dead for more than 10 years. It was also proven upon the trial of the case that J. B. Cochran and M. Stevens, who were tax assessors from and including 1878 and 1879 and to 1881 are dead, and have been dead for more than 10 years. It was also proven on the trial of the case that H. G. Lane was dead, and had been dead for 7 or 8 years. It was further proven upon the trial of the case that all the tax records of Angelina county, Tex., the tax rolls and renditions and tax records for the years 1878, 1879, 1880, and 1881, and back of that time, had been lost and destroyed by fire, which destroyed the whole courthouse.

"Defendant offered in evidence and proved from the commissioners' court records a due and legal levy and assessment of the county taxes for each year in the amount for which the property was sold, which, taken and added to the amount of the state taxes shown by the general laws at the time of the assessment, the sale being made for the exact amount shown to be levied for said years by general laws for state purposes, as shown by the records of the commissioners' court of Angelina county, Tex., for county purposes, without including any interest thereon on either amount. Defendant then introduced in evidence, and proved by certificate from the comptroller's office that the land had been duly rendered for and assessed for taxes by an agent of the John Crutcher heirs and had been duly and legally assessed in all respects in accordance with the laws existing at said time, and due and proper return of same, and of delinquent record made to the commissioners' court of Angelina county, Tex., and to the comptroller of the state of Texas, in accordance with the laws governing such matters at the time said levy and assessment was made, and the amount shown as assessed by the assessor and returned to the comptroller, being as stated, the same amount as that shown in the deed for which sale was made, when the state levy was added to the levy made for county purposes. * * *

"It was further proven by the defendant that the state and county taxes levied against the 728 acres of land, described in assessment and tax deed, had never been paid for 1878 and 1879, nor by said plaintiff, Banks, or by the Crutcher heirs, either for 1878 or 1879, or for any years since said date, and that they amounted to $300 for said time."

Appellee has filed a motion in this court praying this court to strike out the second paragraph of the statement of facts above quoted, it being the contention of appellee in the motion, substantially, that such paragraph is manifestly nothing more than a legal conclusion on the part of the trial judge, and in the nature of things cannot be the statement of the material facts, proof of which was necessary to give the tax deed validity. Appellee, in this connection, argues:

"Appellee fails to see how the court can determine whether or not the levy made by the commissioners' court was due and legal, without having a copy of said levy to pass on, or how the court is in a position to determine that the certificate from the comptroller's office showed that the land had been `duly rendered for and assessed for taxes by an agent of the John Crutcher heirs, that it had been duly and legally assessed in all respects in accordance with the law existing at said time, and due and proper return of same and of delinquent record made to the commissioners' court of Angelina county, Tex., and to the comptroller of the state of Texas, in accordance with the laws governing such matters at the time said levy and assessment was made,' without having said certificate and said return and said delinquent record to determine if said taxes were in fact due and legal."

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