State Mtg. Corporation v. Ludwig

• Decision Date: 06 April 1932
• Docket Number: No. 5973.,5973.
• Parties: STATE MTG. CORPORATION v. LUDWIG et al.
• Court: Texas Supreme Court

48 S.W.2d 950

STATE MTG. CORPORATION v. LUDWIG et al.

No. 5973.

Supreme Court of Texas.

April 6, 1932.

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

Suit by Milton Ludwig and others against the State Mortgage Corporation, in which Mrs. Willie Ludwig and others intervened. Judgment for plaintiffs was affirmed by the Court of Civil Appeals [35 S.W.(2d) 267], and defendant brings error.

Reversed and rendered.

Thomson, Dilworth & Marshall, N. W. Palmer, and Fred Russi, all of San Antonio, for plaintiff in error.

Marcus W. Davis and Church & Graves, all of San Antonio, for defendants in error.

GREENWOOD, J.

Under the amended pleadings on which this case was tried, it was an action by defendants in error, Milton Ludwig, Edna Scott, and Josie Weilbacher, joined by her husband, Emil Weilbacher, as plaintiffs, and by defendants in error Mrs. Willie Ludwig and Dorothy Alberta Ludwig and Wanda Frances Ludwig, minors, such minors suing by Mrs. Willie Ludwig as next friend, as interveners, against plaintiff in error State Mortgage Corporation and its agent, for the removal of a cloud from the title of defendants in error to lot 88, in city block 167 of the city of San Antonio, Tex., and lot 6, in block 3, in city block 1965 of said city.

The amended pleadings of defendants in error averred:

First. That on May 8, 1870, F. Joseph Ludwig acquired title to said lot 88.

Second. That lot 88 was community property of F. Joseph Ludwig and his wife, Sophia Wilhemina Ludwig. That upon the death of F. Joseph Ludwig, on March 14, 1900, and of Sophia Wilhelmina Ludwig, in January, 1905, the title to lot 88 passed to the nine children of F. Joseph Ludwig and Sophia Wilhelmina Ludwig, namely, Albert, Francis William, Wilhelmina, Maria Johanna, Emma Catherina, Catherina Christina, Amanda Sophia, Felix Joseph, and Emilia Louisa, each of said children acquiring an undivided one-ninth of said lot 88.

Third. That on March 31, 1886, Albert Ludwig married his first wife, Annie Ludwig, and that by purchase during said marriage the said Albert Ludwig acquired the eight-ninths interest in lot 88 inherited by his brothers and sisters, thus owning as his separate property one-ninth of lot 88 and he and Annie Ludwig owning as community property the remaining eight-ninths of said lot.

Fourth. That Annie Ludwig died on December 12, 1912. Thereupon the title to her one-half of eight-ninths, being four-ninths of lot 88, passed to her children, viz., defendants in error Milton Ludwig, Edna Scott, and Josie Weilbacher.

Fifth. That on April 9, 1907, Albert Ludwig acquired the title to said lot 6 as part of the community estate of himself and his first wife, Annie Ludwig, and that defendants in error Milton Ludwig Edna Scott, and Josie Weilbacher own by inheritance from Annie Ludwig one-half of lot 6.

Sixth. That on January 19, 1914, Albert Ludwig married his second wife, the defendant in error Willie J. Ludwig. That Albert Ludwig died intestate on April 7, 1926, leaving surviving him as his heirs at law his second wife, Willie J. Ludwig, and the following named children, to wit, defendants in error Milton Ludwig, Edna Scott, Josie Weilbacher, Dorothy A. Ludwig, and Wanda F. Ludwig.

Seventh. That on November 18, 1921, the state of Texas sued Albert Ludwig, called Albert L. Ludwig, in the same court in which defendants in error sued, for $70.74 taxes for the year 1920, by petition averring that said amount of taxes was secured by a lien on "Lot 88 C B 167; Lot 6, Block 3, C B 1965, en solido," without itemization of the taxes due respectively on each of said lots. That the lots were assessed for taxation in the name of Albert L. Ludwig, and were separate and distinct lots and not parts of the same block or subdivision.

Eighth. That on March 31, 1923, judgment by default was entered on the minutes of the court, reciting that the defendant Albert L. Ludwig is indebted to the state of Texas for taxes due it for 1920 in the sum of $64.49, and for the further sum of $19.90 for interest, penalty, and costs, aggregating $84.39, due on lot 88, City Block 167; lot 6, block 3, City Block 1965, lying and being in the county of Bexar, state of Texas, and within the corporate limits of the city of San Antonio, with interest on $64.49 at 6 per cent. per annum from date of the judgment, with foreclosure of tax lien on said lots, without stating the amount due on each lot.

Ninth. That no one was a party to the tax foreclosure proceedings save the state and Albert L. Ludwig.

Tenth. That on May 1, 1923, the clerk issued an order of sale upon said judgment, reciting that it was for the sum of $64.49 taxes and $19.90 interest, penalty, and costs, aggregating $84.39, together with interest on $64.49 from date of the judgment at the rate of 6 per cent. per annum, and that the same was a foreclosure of liens for taxes, interest, penalty, and costs due the state of Texas and the county of Bexar upon "Lot 88, C B 167, Lot 6, Blk 3, C B 1965."

Eleventh. That the sheriff, in giving notice of the sale of the lots, followed the same indefinite description as was given in the order of sale.

Twelfth. That Clay Tallman became the purchaser at the sheriff's sale, and return was made by the sheriff of the sale to him of said lots for $94.98, and that plaintiffs in error claim the property through and under the sheriff's sale and deed to Clay Tallman, and have no other claim of title.

Thirteenth. That said lot 88 at the date of the tax sale and since was worth $10,000 on the market, and said lot 6 was at said times of the market value of $1,100; and that the foreclosure proceedings were void as to defendants in error under the facts plead by them.

Fourteenth. That at all times since the filing of the tax suit Albert Ludwig and defendants in error were in actual, continuous, and adverse possession of the lots, said lots having been in the possession of Albert Ludwig and defendants in error until Ludwig's death, and thereafter in the possession of defendants in error.

Fifteenth. That plaintiff in error State Mortgage Corporation, as an assignee of Clay Tallman, applied on June 2, 1927, for a writ of possession, in order that it might be placed in possession of the lots in controversy. Defendants in error immediately thereafter filed this suit.

Sixteenth. That defendants in error tendered to plaintiffs in error in their pleadings and on the trial double the amount paid by Clay Tallman as purchaser at the tax sale, plus interest from the date of the tax sale at 10 per cent. per annum, which tender was refused.

Defendants in error prayed that the claim of plaintiffs in error be removed as a cloud from their title, and that they have judgment for the title to the lots, and for possession of same.

Plaintiffs in error filed general and special exceptions to the pleadings of defendants in error, and also filed pleas of general denial and of limitations of four years, and they specially plead that the tax judgment barred defendants in error from any such relief as that which they sought.

The district court filed conclusions of fact, to the effect that every averment of the pleadings of defendant in error, as above set out, was established by the evidence, and filed conclusions of law holding that defendants in error, being strangers to the tax judgment and foreclosure, were not bound thereby, and that the tax proceedings invoked the court's exercise of "only special and limited jurisdiction" and were null and void and subject to collateral attack. The district court entered a decree annulling the tax deed and the claim of plaintiffs in error under same as a cloud on the title of defendants in error, which was affirmed by the Honorable Court of Civil Appeals. 35 S.W.(2d) 267, 268.

No real question can be raised under the trial court's findings with respect to the superior title of the defendants in error Milton Ludwig, Edna Scott, and Josie Weilbacher to an undivided four-ninths of lot 88 and to an undivided one-half of lot 6. Annie Ludwig, during her lifetime, was the owner of such interests. Upon her death, such interests descended to and vested in her children, subject to the homestead rights of Albert Ludwig, which necessarily terminated at his death. Arnold v. Leonard, 114 Tex. 535, 273 S. W. 799; Hopkins v. Bacon, 282 U. S. 122, 51 S. Ct. 62, 75 L. Ed. 249; Article 2578 R. S.; Chamberlin v. Leland, 94 Tex. 502, 62 S. W. 740. The judgment foreclosing a lien for taxes arising after Annie Ludwig's death in a suit against Albert Ludwig alone could bind no interest of the heirs of Annie Ludwig. In the words of Mr. Justice Stayton: "It would seem to be a rule of universal application, that the right of no one should be concluded by a judgment rendered in a suit to which he was not a party." Read v. Allen, 58 Tex. 382. We have no question for decision as to the effect on the interests of the heirs of a deceased spouse of a foreclosure on community property against the survivor of the community for a community debt. Nor can the case present any question of bona fide purchaser with the deceased spouse's children sharing actual possession of the property. The tax sale was plainly utterly ineffective with regard to the four-ninths of lot 88 and one-half of lot 6, owned and possessed by defendants in error Milton Ludwig, Edna Scott, and Josie Weilbacher.

A different question is presented as to the interests claimed by defendants in error by descent from Albert Ludwig at a date subsequent to the sale under the judgment foreclosing the alleged tax lien. In order to determine the questions raised relative to such interests, we must ascertain the effect of the tax foreclosure proceedings on the title of Albert Ludwig.

The Supreme Court has definitely rejected the view that a district court, in foreclosing a tax lien on land, is exercising a special and limited jurisdiction as held in this case by both courts below. In Brown v. Bonougli, 111 Tex. 275, 232...