Shaffer v. Schaleben, 2942

• Decision Date: 04 January 1951
• Docket Number: No. 2942,2942
• Parties: SHAFFER et al. v. SCHALEBEN et al.
• Court: Texas Court of Appeals

Page 234

236 S.W.2d 234

SHAFFER et al. v. SCHALEBEN et al.

No. 2942.

Court of Civil Appeals of Texas, Waco.

Jan. 4, 1951.

Rehearing Denied Feb. 8, 1951.

Brewer, Matthews, Nowlin & Macfarlane, San Antonio, Raymond E. Ehrlich, Tom L. Hartley, Pharr, Leo Brewer, Lionel R. Fuller, San Antonio, for appellants.

Cecil A. Edwards, John J. Carr, Edinburg, for appellees.

TIREY, Justice.

This is a suit in the nature of a bill of review. The appellees grounded their attack under the authority of Harrison v. Sharpe, Tex.Civ.App., 210 S.W. 731, writ ref., and Rowland v. Klepper, Tex.Com.App., 227 S.W. 1096, judg. adopted by S.Ct. Appellants have appealed from the judgment of the 93rd District Court of Hidalgo County, setting aside on direct attack an order of sale and all subsequent proceedings and conveyances thereunder issued under a tax foreclosure judgment rendered by the same court, insofar as the same affected certain royalty interests owned by appellees but leaving the other foreclosed interests undisturbed. The case was tried without the aid of a jury and there was no request for findings of fact and conclusions of law and none was filed. The factual situation is complicated and a comprehensive statement is necessary.

In February, 1940, the State of Texas, for itself and for the use and benefit of the taxing units whose taxes are collected through the Tax Assessor and Tax Collector of the County of Hidalgo, filed suit (State of Texas v. Maxwell E. Begthol et al., No. E-218) to foreclose taxes on certain land in Hidalgo County Texas (pertinent here), namely lot 11 in block 15, lots 15 and 16 in block 16 and lot 11 in block 19 of Alamo Land and Sugar Company's subdivision of Porcion 72 in said county. Subsequently pleas of intervention were filed for Pharr San Juan Independent School District, Hidalgo Independent School District and Hidalgo County Water Improvement District No. 2 and these taxing units sought to foreclose tax liens on the above property, as well as other property not pertinent here. Subsequently Schaleben, on May 26, 1941, purchased from Begthol (the record owner at the time) an undivided one-fourth royalty interest (non-participating as to the making of leases, receiving of bonuses and right to receive delayed rentals) in the above lots, and on June 9, 1941, Schaleben conveyed to Womack by royalty deed an undivided 3/16th royalty interest to the above property, both deeds having been recorded in June, 1941. Schaleben testified to the effect that at the time he purchased the royalty interest from Begthol that he knew the foreclosure suit was pending against the land; that thereafter he knew an amended petition had been filed and he and Womack had been made parties to the suit. This amended petition was filed on March 4, 1942, and it made for the first time Schaleben and Womack defendants. Womack also testified to the effect that at the time he purchased the royalty interest he knew the tax suit had been filed. On October 12, 1942, final judgment was entered in the above suit and the judgment recited in effect that Schaleben and Womack and the other defendants, although personally served with citation, did not appear and they were adjudged to be in default. The tax judgment was in favor of the plaintiff and interveners for the delinquent taxes and such judgment fixed the amount due against each tract in behalf of each of the taxing units and ordered foreclosure against all defendants of the tax liens against the property in behalf of the taxing units accordingly. The court found that the defendant Begthol only was the owner of the property and was indebted to the plaintiff and the other taxing units for the amount of taxes established against each tract, and that all other defendants are claiming some interest in the property but such claims were inferior to the tax liens established and foreclosed. No personal judgment was entered against either Schaleben or Womack. Order of sale seasonably issued and the above property was sold (with the exception of lot 11 in block 15) on April 4, 1943 at sheriff's sale to the State of Texas, in trust for itself, Hidalgo County, and the other taxing bodies. By correction deed dated June 29, 1945, lot 11 in block 15, above described, was included in the sale to the State of Texas. On May 16, 1944, L. W. Shaffer purchased by tax deed from Hidalgo County Trustee, lots 15 and 16 in block 16 and also lot 11 in block 15 of the above property. On October 2, 1945, L. W. Shaffer, by sheriff's deed, purchased the above property. The sheriff's deed recited, among other things, that the period of redemption provided by law had expired and this sale was made by virtue of the provisions of Art. 7328, Vernon's Ann.Civ.Stats. A. O. Kolberg, Inc., a corporation, purchased from the County of Hidalgo, Trustee, on March 6, 1945, lot 11 in block 19, out of the same subdivision, and from the State of Texas, Trustee, on December 4, 1945. This last deed was from the Sheriff of Hidalgo County and recited that redemption had expired and sale was made pursuant to Art. 7328, Vernon's Ann.Civ.Stats. aforesaid. Appellant Lentz acquired the west one-half of lot 11 in block 19 above from Kolberg in January, 1946. Schaleben said he first learned judgment had been entered against him foreclosing the lien about June, 1944. Womack said he learned about the judgment 'along in 1946.'

On July 5, 1946, Schaleben and Womack filed their original motion in this cause to set aside the tax judgment entered October 12, 1942. On the 22nd of November, 1949, the trial court overruled the motion of appellants here to strike the third amended motion filed by Schaleben and Womack and at the same time entered an order of dismissal at the request of Schaleben and Womack, in which the court dismissed the State of Texas and the other taxing units above named who recovered in the final judgment entered on October 12, 1942, and in this order of dismissal the court found that the foregoing taxing units' claims had been paid and that such units were not necessary parties to a determination of Schaleben's and Womack's motion to set aside the judgment and that the interest of the remaining parties (which includes appellants here) would not be prejudiced by such dismissal. We think the evidence is sufficient to support the finding of the trial court in this behalf and that his action in so doing is in accord with the doctrine announced in Harrison v. Sharpe, supra, and Rowland v. Klepper, supra. The order further provided that such parties are dismissed without the costs assessed against them, and appellants excepted to this order.

In Schaleben's and Womack's fourth amended motion (filed Dec. 7, 1949) the only parties defendant were L. W. Shaffer, Conrad Self, Trustee, Jack Pape, Talitha Pape, John E. Jancik, Paul Freeman, A. O. Kolberg, Inc., a corporation, A. O. Kolberg and C. M. Lentz. Maxwell V. Begthol was not made a party to the suit because they alleged that he was not interested in the subject matter of the litigation for the reason that he had executed and delivered a quit-claim deed to L. W. Shaffer. Lester Foran, a resident citizen of Nueces County, was not made a party defendant for the reason that Schaleben and Womack alleged that Foran had recognized their claim and they had no controversy with him. Said motion specifically averred that Schaleben was employed by the Board of Economic Warfare in September, 1942, and reported for duty in October of that year and was assigned to duty in Torreon, Coahuila, where he resided until about June, 1946; that neither he nor Womack were served with citation; that they did not appear and answer the suit and that Schaleben had no knowledge that judgment had been entered until June, 1944, and Womack 'along in 1946.' They also alleged substantially the history of the foregoing suit. They pleaded other detailed facts and circumstances (and tendered evidence thereon) that would, if so found, by the court, relieve them of laches, and certain facts and circumstances (and tendered evidence thereon) that, if so found, would have tolled the Statute of Limitations, namely Art. 5529, Vernon's Ann.Civ.Stats., as to Kolberg and Lentz. See O'Ferral v. Coolidge, Tex.Sup., 228 S.W.2d 146. In their prayer they asked, among other things, that all proceedings under said judgment be held null and void insofar as they were concerned; that all conveyances purporting to convey any interest affecting their mineral estate by virtue of said judgment, order of sale and sheriff's deeds, be held null and void and that all clouds be removed from the title to their mineral estate, and that said judgment and all subsequent proceedings be set aside and vacated insofar as their interests are concerned. It was stipulated that 'the record in Cause No. E-218, filed in the office of the District Clerk, does not show that any citation issued to Hale Schaleben or J. Y. Womack.'

The appellants excepted to the fourth amended motion on grounds pertinent here, substantially to the effect, (a) that petitioners had failed to join necessary parties as parties defendant, (b) such motion failed to allege good and meritorious defenses to the original tax suit, (c) that the action was barred by the four-year statute of limitations, (d) that such action was a collateral attack on the tax judgment and by reason thereof they could not contradict the recitations of service of citation contained in the judgment.

Appellants also pleaded general denial and set up as affirmative matters of defense the four-year statute of limitations and laches and also that Schaleben and Womack had acquired purported mineral interests with notice that the suit to foreclose taxes was pending and by reason thereof they were not innocent purchasers for value of their claimed mineral interest; that the taxes foreclosed in the tax suit had been assessed prior to the time Schaleben and Womack acquired their interest in the land and that t...