McMahan v. State

• Decision Date: 27 April 1912
• Citation: 147 S.W. 714
• Parties: McMAHAN et al. v. STATE.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

147 S.W. 714

McMAHAN et al. v. STATE.^†

Court of Civil Appeals of Texas. Dallas.

April 27, 1912.

Rehearing Denied May 18, 1912.

Appeal from District Court, Rains County; R. L. Porter, Judge.

Action to foreclose a tax lien by the State against B. M. McMahan and others. From a judgment for plaintiff, B. M. McMahan and wife appeal. Affirmed.

J. S. Sherrill, of Greenville, for appellants. H. W. Hunt, of Emory, for the State.

TALBOT, J.

This suit was instituted by the state of Texas against B. M. McMahan, Lenora McMahan, wife of the said B. M. McMahan, J. J. Swofford, and others to recover the sum of $166.57, alleged to be due by the said B. M. McMahan for taxes, interest, penalties, and costs accrued for the years 1907, 1908, and 1909, and to foreclose the tax lien against all of the defendants on 94½ acres of land, a part of the N. Navarro survey in Rains county, Tex., and lots 1, 2, 3, 4, 5, 6, 9, 10, 11, 12, and 20, in block No. 3, and lots 7, 8, and 9, in block No. 1, of the town of Emory in said county, all as described in plaintiff's petition. It seems that all of the defendants, except B. M. McMahan and wife and J. J. Swofford, compromised, and the cause was dismissed as to them and for the taxes for the years 1907 and 1909, and the case tried on the claim for taxes, etc., due for the year 1908. From a judgment in favor of the plaintiff against the defendant B. M. McMahan for the sum of $36.05, with a foreclosure of the lien as against the defendants Mrs. Lenora McMahan and J. J. Swofford, the defendants B. M. McMahan and his wife, Mrs. Lenora McMahan, appealed.

The first assignment of error is that the "court erred in overruling and in not sustaining the objection of the defendants to the introduction in evidence of the delinquent tax list of Rains county for the year 1908, as shown by defendants' bill of exception No. 1, which is here referred to and made part hereof." Appellant urges two propositions under this assignment, as follows: (1) "Where the delinquent list offered in evidence showed 183 acres of land, and plaintiff is seeking a foreclosure on 94½ acres, it was error to admit the list, unless it was first shown that the 94½ acres is part of the land in the list." (2) "It was error to admit the delinquent tax list in evidence, because the same showed 14 lots in the town of Emory, and did not apportion to each lot separately its pro rata share of the entire tax, penalty, and costs; nor was the tax claimed to be due on the 94½ acres apportioned to said tract separately." We are of the opinion that neither of these propositions should be sustained. It is true, as contended by appellants, that the delinquent list introduced in evidence shows 183 acres of land of the Navarro survey, and 14 lots situated in the town of Emory, assessed against the defendant B. M. McMahan for the year 1908, and does not show the amount of the taxes due against each separate piece of property; but we think the evidence sufficient to establish that the 94½ acres upon which the tax lien was sought to be foreclosed is a part of the 183 acres shown by the list to have been assessed against the appellant B. M. McMahan; and that all of the property against which the lien was foreclosed by the judgment of the lower court was rendered for assessment, and the description thereof given, by said appellant. In answer to the question if he did render his property for taxation himself, the appellant B. M. McMahan, answered: "I have no independent recollection. Suppose I did, but really do not know. Sometimes I have rendered my taxes since I have been living in Greenville by just telling the assessor to fill out a rendition for me on his books, showing what property I had. Sometimes that way; and sometimes I would render it myself. The fact is, I do not remember whether I have rendered the property in this county for several years. I have not paid any taxes for the year 1908." He further testified: "I do not think Swofford has any 94-acre tract. His tract is either 96 or 97 acres; I am not sure which. I conveyed 96 or 97 acres of the N. Navarro survey to Swofford. I never owned a tract of 94 acres. I do not now own any of the Navarro survey. Myself and W. B. Teagarden did own two blocks of the land. They were separate property, more than a mile apart; and there was 96 acres in one and 87 in the other, or 97 in one or 86 in the other. I will not be sure as to the exact number of acres. Teagarden and I owned these tracts jointly. Teagarden got the balance of the 183 acres that Swofford did not get. At the time I conveyed this to Swofford, Teagarden conveyed to me his interest in the 96 or 97 acres, whichever it was, and I conveyed him my interest in the 86 or 87 acres, whichever it was; then I conveyed to Swofford. It was all done about the same time. From the field notes shown me, I see that the N. Navarro survey number is No. 60." Defendant then offered in evidence a certified copy from the General Land Office of the field notes of the N. Navarro survey in Rains county, Tex., showing that the said survey is survey No. 60; also offered in evidence the official map of Rains county, for the purpose of showing, and which did show, that the N. Navarro survey is shown on the map to be survey No. 60.

Touching the second proposition, it may be said that the statute requires that in listing real estate for taxation the owner shall make and sign a statement, verified by his oath, which shall truly and distinctly set forth (1) the name of the owner; (2) the abstract number; (3) the number of the survey; (4) the name of the original grantee of the certificate; (5) the number of acres and the value of the land; (6) the number of the lot or lots, the number of the block, and the name of the city or town, and the value of the lots. The method of assessing property as here prescribed is required, in order that it may bear its just proportion of taxation, and plainly the three essentials are the...