Rolison v. Puckett, A-918.

• Court: Supreme Court of Texas
• Writing for the Court: Sharp
• Citation: 198 S.W.2d 74
• Parties: ROLISON et al. v. PUCKETT et al.
• Docket Number: No. A-918.,A-918.
• Decision Date: 06 November 1946

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198 S.W.2d 74 ROLISON et al.
v.
PUCKETT et al. No. A-918. Supreme Court of Texas. November 6, 1946. Rehearing Denied December 31, 1946.

Error to Court of Civil Appeals of Third Supreme Judicial District.

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Suit by C. L. Rolison against Ben Puckett and another for title to and possession of land, wherein the defendants filed a cross-action and demanded right to redeem property from tax sale. A judgment for plaintiff was reversed and remanded by the Court of Civil Appeals, 193 S.W.2d 974, and plaintiff brings error.

Judgment of the Court of Civil Appeals reversed, and judgment of trial court affirmed.

Geo. L. Hamilton, City Atty., of Sherman, for petitioners.

Cox & Cox and J. P. Cox, Jr., all of Sherman, for respondents.

SHARP, Justice.

This suit involves the validity of a tax judgment in favor of the City of Sherman, Texas, a home rule city, which is attacked in a collateral proceeding, and an alleged waiver by the city of such rights as it acquired under the judgment, foreclosure, and sheriff's sale.

Before 1930 the property involved was owned as community property by E. W. and Nannie Neagle, husband and wife, and they occupied it as their homestead. As shown by the facts, detailed below, in 1930 the city obtained a tax foreclosure on the property and a sheriff's deed thereto; but possession was not demanded by the city, nor was the property surrendered to it. Respondents now occupy the property as heirs of Nannie Neagle.

In 1945 petitioner C. L. Rolison purchased the property from the city at public sale, and he instituted this suit for title to and possession of the land. Respondents filed a cross-action against Rolison and the City of Sherman, and likewise made other heirs of Nannie Neagle parties to the suit. The cross-action set up the alleged invalidity of the judgment under which the city acquired title, and alleged that the city had waived whatever rights it acquired under such judgment, foreclosure, and sale. They tendered into court the amount of all taxes, penalties, and interest owing, and demanded the right to redeem the property. The trial court, sitting without a jury, upheld the sale to the city in 1930 and the sale by the city to Rolison in 1945, and entered judgment for petitioner Rolison for title and possession. The Court of Civil Appeals reversed and remanded the cause without passing on the validity of the tax judgment, holding that the city had waived its rights under the sale to it in 1930, and that it was, therefore, without power to sell the land to Rolison. 193 S.W.2d 974. Writ of error was granted by this Court on that point.

The facts are stipulated. After acquiring the property in 1917 as their community property, E. W. and Nannie Neagle became delinquent in the payment of their taxes. Delinquent tax notices were sent by the city to E. W. Neagle, but such notices recited that the property was owned by E. W. and Nannie Neagle. In 1929 the city instituted suit, naming E. W. and Nannie Neagle and an alleged lien holder as defendants, and prayed for judgment for the taxes and a foreclosure of its tax lien. After the suit was filed, but before citation was issued, E. W. Neagle died, intestate and without leaving any children. No amended petition was filed, nor was any suggestion of his death filed in the case. No showing was made that there was an administration on his estate, nor was it shown whether or not one was necessary. Thereafter citation was issued and served upon Nannie Neagle and the lien holder, both of whom failed to answer. Judgment was rendered by default against "Nannie Neagle, a feme sole," for the amount of the taxes, etc., and for foreclosure of the tax lien against all parties. The judgment recited due service and that the cause was dismissed as to the defendant E. W. Neagle.

The city purchased the property at the foreclosure sale for the amount of the judgment and costs in the tax suit, but the Neagle tax account was not credited with any amount by the city until 1945. The sheriff deeded the property to the city under the above sale in December, 1930, and the deed was duly recorded on February 4, 1931.

Notwithstanding the sale to the city, Nannie Neagle continued to live on the property until her death in 1944. Each year, from 1930 to 1944, Nannie Neagle rendered the property to the city for taxes

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and it carried the rendition in her name, and sent her annual tax statements. No taxes were ever paid, nor was any rent requested or paid, and no request or demand for possession of the property was made by the city. In 1941 the city threatened suit if the taxes were not paid for the years from 1919 to 1940, the year 1922 excepted. Again in 1943 a similar demand for tax payment was made under threat of suit and foreclosure.

About 1940 respondent Mrs. Laura Puckett, a sister of Nannie Neagle, moved on the property with Nannie Neagle; and about 1942 Ben Puckett, Laura's son, also moved on the premises. Nannie Neagle, who had no children, died intestate in 1944. Her sister Laura Puckett and her nephew Ben Puckett continued to reside on the property, and are still residing there.

In early January, 1945, the city, at an ex parte hearing unattended by any representative of the Pucketts, procured a writ of assistance. The writ was never executed, but when Mrs. Puckett learned of it she and Ben Puckett visited the city attorney. Ben Puckett also visited the tax assessor. In mid-January, 1945, the Pucketts were informed by the tax assessor and the city attorney that if they would pay all taxes and other charges against the property, the tax assessor and the city attorney would recommend to the city commission the execution of a quitclaim deed by the city to the Pucketts, or to any of the heirs of Nannie Neagle who would make such payment. The Pucketts, however, failed to raise the money to make such payment. Thereafter, in the latter part of January, 1945, the city advertised the property for sale, requiring that the bids be submitted by February 5, 1945, and reserving to itself the right to reject any and all bids. Some six or eight bids were received. The Pucketts offered to pay an amount equal to all taxes and other charges accrued against the land, totaling $1,666; but petitioner Rolison bid $2,058, which bid, being higher, was...