Perry v. Whiting

• Decision Date: 26 June 1909
• Citation: 121 S.W. 903
• Parties: PERRY v. WHITING.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

121 S.W. 903

PERRY v. WHITING.^†

Court of Civil Appeals of Texas.

June 26, 1909.

Rehearing Denied October 16, 1909.

Appeal from District Court, Ochiltree County; H. G. Hendricks, Judge.

Trespass to try title by J. W. Whiting against G. M. Perry. Judgment for plaintiff, and defendant appeals. Affirmed.

E. C. Gray and Theodore Mack, for appellant. Hoover & Taylor, for appellee.

SPEER, J.

This is an action of trespass to try title brought by J. W. Whiting against G. M. Perry, in which a judgment was entered by the court for the plaintiff upon the following findings of fact and conclusions of law, which we adopt:

"Conclusions of Fact.

"First. I find that the land in controversy, namely, section No. 1 in block No. (12) twelve, H. & G. N. Ry. Co.'s survey, in Ochiltree county, Tex., was patented to Julian W. Whiting, assignee, by the state of Texas, the 20th day of May, 1874.

"Second. I find that suit was instituted in the district court of Ochiltree county December 24, 1901, by an original petition on behalf of the state, complaining only `of the Esta (meaning Estate) John Wylie, a nonresident citizen, hereinafter styled defendant,' to foreclose the lien for taxes on the land in controversy delinquent for the years 1900 and 1901, and that the petition in said suit was verified by the affidavit of the county attorney that the averments in the petition are true to the best of his knowledge and belief, but further find that the petition was principally upon a printed form and contained no allegations that the owner was unknown, nor did said petition allege any cause of action against an unknown owner.

"Third. I find that a notice by publication in substantial compliance with the statute was made and published on practically a prepared and printed form, but in this connection I further find that there is no affidavit in the record by the county or district attorney that the defendant was a nonresident of the state, or that the owner of said land was unknown or could not be ascertained by inquiry.

"Fourth. I find that the said citation was addressed to the estate of John Wylie, being the only defendant sued in the petition, reciting the nature of the plaintiff's demand against said defendant estate as an action to recover of the same defendant, as the owner of said lands the said taxes, and further find that the judgment is only against the estate of John Wylie, neither the petition or the judgment mentioning any legal representatives, or heirs of...