Lippincott v. Taylor

• Decision Date: 07 January 1911
• Citation: 135 S.W. 1070
• Parties: LIPPINCOTT et al. v. TAYLOR.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

135 S.W. 1070

LIPPINCOTT et al. v. TAYLOR.^†

Court of Civil Appeals of Texas.

January 7, 1911.

On Motions for Rehearing, February 11, 1911.

On Second Motion for Rehearing, March 4, 1911.

Appeal from District Court, Clay County; A. H. Carrigan, Judge.

Trespass to try title by William Taylor against M. E. Lippincott and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Taylor & Humphrey, for appellants. G. A. Watts and W. G. Eustis, for appellee.

CONNER, C. J.

Appellee instituted this suit in the usual form of trespass to try title to lots 3, 4, 5, and 6 in block 21 of the Howeth & Eldridge addition to the town of Henrietta. Appellants pleaded not guilty and the three and ten years' statutes of limitations. After the introduction of the testimony, the court gave a peremptory instruction in appellee's favor, and the verdict and judgment are in accordance therewith.

There is no controversy in the testimony. Appellee proved a legal chain of title from the sovereignty of the soil to himself; all conveyances being dated prior to the 30th day of March, 1895. On that day he deeded the land in controversy to J. D. Lippincott preserving therein the vendor's lien to secure the entire recited price of the land. On November 27, 1905, in a suit by the state of Texas against J. B. Lippincott, sole defendant, the state recovered a judgment for $97.56 for delinquent taxes upon the property in controversy for the years 1895 to 1903, inclusive. Said judgment also foreclosed the lien upon the property given by the law to secure delinquent taxes. Thereafter on January 2, 1906, the sheriff of Clay county, by virtue of an order of sale authorized by the judgment, sold the property to appellant R. J. Slagle for $97.56, conveying "all of the rights, title and interest of J. B. Lippincott in the property" heretofore mentioned. The other appellant, Murmert, holds a portion of the property in controversy under a quitclaim deed from Slagle dated April 11, 1906. It further appears that J. B. Lippincott died on December 31, 1905, before the sheriff's sale to Slagle on January 2, 1906; that the purchase price (evidenced by vendor's lien notes) mentioned in the deed from appellee to Lippincott was never paid; and that on April 9, 1909, Molly E. Lippincott, surviving wife of J. B. Lippincott, reconveyed the property in controversy to appellee in settlement of the vendor's lien notes given by her husband as the purchase price of the property. It does not appear that there has ever been any administration upon the estate of J. B. Lippincott.

It is insisted in the first and second assignments of error that the court erred in giving the peremptory instruction in favor of appellant; the contention being that the sale of land under the judgment for taxes vested title in appellant Slagle until such sale was set aside by a direct proceeding brought for that purpose, and this raises the only question presented. In the leading case of Taylor v. Snow, 47 Tex. 462, 26 Am. Rep. 311, principally relied upon by appellants in support of their contention, it was held that a sale by virtue of a judgment entered after the death of the defendant in the judgment was not absolutely void, but could only be set aside on the ground of the defendant's death in a direct proceeding brought for the purpose. The judge in writing the opinion uses expressions that seem to apply here; but in the later cases of Fleming v. Ball, 25 Tex. Civ. App. 209, 60 S. W. 985, and Hooper v. Caruthers et al., 78 Tex. 432, 15 S. W. 98, the case of Taylor v. Snow was limited to the facts of that particular case, and it is to be observed that in the case we now have before us the defendant died after the rendition of the judgment but before the sale. We have a statute (Revised Statutes, art. 2332) which provides that "where a sole defendant dies after the judgment for money against him, execution shall not issue thereon, but the judgment may be proved up and paid in due course of administration." This statute is possibly susceptible of the construction that it applies only to cases where the death of the defendant occurs after judgment and before the issuance of any execution. But, regardless of this distinction, it has been held that, under an execution issued in the lifetime of a defendant, proceedings subsequent to his death are void. Conkrite v. Hart & Co., 10 Tex. 140; Boggess v. Lilly, 18 Tex. 200; Barton v. Nix, 20 Tex. 42; McMiller v. Butler, 20 Tex. 403; Tuttle v. Turner, 28 Tex. 776. The rule established by these authorities seems to have been questioned in Webb v. Mallard, 27 Tex. 80; but the later cases of Hooper v. Caruthers and Fleming v. Ball, supra, seem to affirm it. A consideration of the article of the statute that we have quoted and of other laws regulating the estates of deceased persons evidently indicates that it is the legislative policy of this state to have all claims against decedents, however evidenced, and however secured, to be settled through the probate court. In view of which and of the supporting authorities hereinbefore cited, we conclude that the sale of the land in controversy to appellant Slagle by the sheriff of Clay county was absolutely void and can be so declared in this proceeding.

But, if mistaken in the foregoing conclusion, there is yet another view of the case that it seems to us is conclusive in appellee's favor. As before stated, the title was in him at the date of his deed of J. B. Lippincott, and, under a long line of decisions that we need not here cite, the legal title to the property in controversy remained in appellee until payment of the purchase money, which it is conceded never occurred. Appellee was not a party to the state's suit against J. B. Lippincott, and the judgment, therefore, had no adverse effect as to his rights. See Nunley et al. v. Blanton, 126 S. W. 1110; Wren v. Scales, 119 S. W. 879; Scales v. Wren, 127 S. W. 164; Blair v. Guaranty Savings Loan & Investment Co., 118 S. W. 608; Bradley v. Janssen, 93 S. W. 506.

It is true, as appellants insist, that article 5232b of the Revised Statutes relating to delinquent taxes provides that all lands or lots which have been returned delinquent shall be subject to a lien for the delinquent taxes and may be sold under the judgment of the court for all taxes, interest, penalty, and cost shown to be due by assessment, although the owner be unknown, or though it be listed in the name of a person not the actual owner, and though the ownership be changed. This, however, we think can mean no more than that the lien for the taxes, and, in a proper proceeding and against the proper persons, the powers of foreclosure and sale therefor, cannot be destroyed by mutations of title. It cannot mean, as appellants at least seem to insist, that the state shall have the power to destroy the title of the real owner or as against him foreclose the tax lien in a suit or proceeding to which he in no way has been made a party. To so hold is in conflict with the decisions we have cited and with the state and federal constitutional provisions guaranteeing a citizen against a deprivation of his property save by "due process of law." Article 2375, Revised Statutes, provides that when a sale under execution has been made and the terms thereof...