Lufkin v. City of Galveston

• Decision Date: 19 March 1889
• Citation: 11 S.W. 340
• Parties: LUFKIN <I>v.</I> CITY OF GALVESTON.
• Court: Texas Supreme Court

11 S.W. 340

LUFKIN

v. CITY OF GALVESTON.

Supreme Court of Texas.

March 19, 1889.

Appeal from district court, Galveston county.

Action by Mary A. Lufkin, executrix, etc., against the city of Galveston. Plaintiff appeals.

L. E. Trezevant, for appellant. George P. Finlay, for appellee.

GAINES, J.

Certain lots in the city of Galveston were sold by the city tax collector for the school taxes of A. P. Lufkin; the sale being not only for the taxes assessed upon the lots themselves, but also for those assessed upon other property. The city having become the purchaser at the sale, the tax collector made it a deed to the lots. The suit was originally brought by A. P. Lufkin, but by an amended petition the appellant made herself a party plaintiff, alleging the death of the original plaintiff, and that she was the executrix of his will, and the sole owner in fee-simple of the lots in controversy. She also alleged that the taxes for which the lots were sold were illegal, and that the proceedings under which the sale was made were not in accordance with the law, and were therefore void, and prayed that the tax-deed should be canceled and removed as a cloud upon her title. The defendant reconvened, and claimed that it had title to the lots by virtue of the tax-sale and deed, and prayed for a writ of possession. There was a judgment for defendant on its plea in reconvention.

The questions relating to the validity of the school tax raised by the petition were passed upon by this court in the case of Werner v. City of Galveston, 7 S. W. Rep. 726, and were decided adversely to the claim of appellant. Following that decision, we here hold that the tax was legal.

Before proceeding to the consideration of the other questions affecting the legality of the sale, we will first dispose of an objection to the validity of the judgment on the ground of the want of proper parties. The plea in reconvention upon which the defendant recovered was in the nature of a cross-action of trespass to try title, and it is insisted that the heirs of A. P. Lufkin should have been made parties defendant to that action. The statute provides that, "in every suit against the estate of a decedent involving title to real estate, the executor or administrator, if any, and the heirs shall be made parties defendant." Rev. St. art. 1202. If there be a will, and the land be devised, we presume the correct interpretation is that the devisee, and not the heir, shall be made a party. In such a case the heir has no interest to be affected. In this case the appellant sued as executor, and alleged that she was the sole owner of the lots; and on the trial it was admitted that she was the sole devisee under the will of her testator. Being the sole owner of the property, and the executrix of the will, she was the only necessary party defendant to the cross-action.

It is insisted under appellant's eighth assignment of error that too much interest was charged upon the assessment, and that for that reason the sale of the lots is invalid. The principle is well established that if a portion of the tax for which the property is sold is illegal, the sale will be a nullity. The charter of the city (of which we are required to take judicial notice) provides that, if "taxes are not paid on or before the time prescribed by the ordinances of the city, the same shall from such time bear interest at the rate of 8 per cent. per annum till paid." Charter, § 97. The ordinance introduced in evidence shows that the taxes in question in this suit were to become due on the 1st day of January, 1882, but it was also shown that the assessment rolls did not reach the hands of the tax collector until the 23d day of that month. Could the city by ordinance fix a day when the taxes should be due, so as to make them bear interest from the day so named, without putting it in the power of the collector to receive them at that time? In the levy the city council in the first instance imposed a tax of 20 cents on the $100 worth of property, which was the limit authorized by the popular vote. To require that the tax should bear interest before the rolls were placed in...