McMillan v. Owens, 5865.

• Decision Date: 23 February 1948
• Docket Number: No. 5865.,5865.
• Citation: 209 S.W.2d 622
• Parties: McMILLAN v. OWENS.
• Court: Texas Court of Appeals

209 S.W.2d 622

McMILLAN v. OWENS.

No. 5865.

Court of Civil Appeals of Texas. Amarillo.

February 23, 1948.

Rehearing Denied March 29, 1948.

Appeal from District Court, Lubbock County; G. V. Pardue, Judge.

Trespass to try title action by Marcus O. Owens, Jr., against S. E. McMillan. From a judgment for plaintiff, defendant appeals.

Affirmed.

Geo. S. Bond, of Lubbock, for appellant.

Robr. A. Sowder, of Lubbock, for appellee.

STOKES, Justice.

On April 14, 1927, the State of Texas recovered of C. B. Carber a judgment for delinquent taxes in the sum of $22.31, together with foreclosure of its tax lien on three town lots located in the City of Lubbock. On the same day the State recovered a judgment against Hanna P. McCord, J. E. Jones, and W. A. Burrus for delinquent taxes in the sum of $141.88, and foreclosure of its tax lien on thirteen other lots located in the City of Lubbock. On June 8, 1927, the three lots first mentioned were sold at public vendue by the sheriff of Lubbock County, and on July 5, 1927, the thirteen lots were likewise sold by him. At each sale the State of Texas was the purchaser and the sheriff's deeds were properly executed and placed of record in Lubbock County.

On March 5, 1946, under the provisions of Sec. 9, Art. 7345b, Vernon's Annotated Civil Statutes, the sheriff of Lubbock County re-sold all of the lots to the appellee, Marcus O. Owens, Jr. The consideration for the three lots first mentioned was $35 and for the thirteen lots the consideration was $197.25, all of which was paid in cash by the appellee.

On the morning of March 5, 1946, before the sheriff sold the lots to the appellee, appellant, S. E. McMillan, paid to the tax collector of Lubbock County an amount of money equal to all taxes and charges against the lots and received from the tax collector receipts therefor which were forwarded to the Comptroller of Public Accounts at Austin, and they were approved by him on October 10, 1946. On March 18, 1946, thirteen days after the re-sale to appellee, J. E. Jones, one of the defendants in the tax judgments, conveyed his interest in the property to appellant and on July 11, 1946, C. B. Carber conveyed to appellant his interest therein and the record indicates that appellant thereafter procured other interests in the property.

This action was instituted by the appellee, Marcus O. Owens, Jr., against the appellant on July 7, 1947, in the form of trespass to try title. Appellee pleaded not guilty and alleged the judgments in the tax suits of April 14, 1927, together with the Orders of Sale and sheriff's deeds executed under them were void for numerous reasons and that the State, therefore, procured no title under them. He alleged further that the re-sale of the property by the sheriff of Lubbock County to appellee on March 5, 1946, conveyed no title because the State had no title under the tax foreclosure sales and because he had redeemed the property under the redemption receipts before the resale was made to the appellee.

The case was submitted to the court without the intervention of a jury and resulted in a judgment in favor of the appellee. Appellant duly excepted, gave notice of appeal and presents the case for review upon a number of assignments of error in which he contends the court erred in rendering judgment in favor of the appellee because, first, the judgments in the original tax suits together with the Orders of Sale and sheriff's deeds executed thereunder were void and the State of Texas therefore procured no title under them and, secondly, the resale of the lots by the sheriff of Lubbock County to the appellee was void because appellant had redeemed them and redemption certificates had been issued by the tax collector of Lubbock County before the sales were made.

The grounds upon which appellant contends the original tax judgments were void are that the defendants therein were not properly before the court because the petition alleged they were residents of Lubbock County where the suit was filed and they were cited by publication; that W. A. Burns was the record owner of some of the lots and he was not made a party to the suit; that Hanna P. McCord was a married woman and her husband was not a party to the suit; that, although appointed to represent the defendants, the attorney ad litem failed to appear and represent them; that, in one of the suits, the Order of Sale was issued less than twenty days after the judgment was rendered; and that no affidavit was filed to support the citations by publication as required by law.

The contentions clearly constitute a collateral attack upon the tax judgments and such an attack cannot be made in this suit because the judgments are regular and valid upon their faces. They state the defendants cited by publication were present in court by an attorney duly appointed by the court to represent them and in a collateral proceeding, it will be presumed that all preliminary requirements were observed and that citations by publication were supported by proper affidavits. We are not directed to any testimony that Hanna P. McCord was a married woman when the tax judgment was rendered against her but, even if she was, the failure to make her husband a party to the suit would not vitiate the entire judgment. The fact that the Order of Sale was issued less than twenty days after the judgment was rendered was but an irregularity and it will be respected until set aside by a direct proceeding. House v. Robertson, Tex.Civ. App., 34 S.W. 640. The record reveals a deed from W. A. Curtis to W. A. Burns and J. E. Jones dated August 24, 1907, conveying some of the lots and Burns was not made a party defendant in the tax suits. Whether or not Burns was a necessary party is immaterial so far as the validity of...