State v. Bagby's Estate, 5624.

• Decision Date: 02 March 1939
• Docket Number: No. 5624.,5624.
• Parties: STATE et al. v. BAGBY'S ESTATE et al.
• Court: Texas Court of Appeals

Page 687

126 S.W.2d 687

STATE et al. v. BAGBY'S ESTATE et al.

No. 5624.

Court of Civil Appeals of Texas. Texarkana.

March 2, 1939.

Appeal from District Court, Red River County; N. L. Dalby, Judge.

Suit by the State of Texas and another against the Ada Bagby Estate and others to enforce a tax lien, wherein the Clarksville Independent School District intervened as a party plaintiff. From an unsatisfactory judgment, plaintiffs and intervener appeal.

Affirmed.

Shirley W. Peters, of Dallas, for appellants.

C. A. Holloway, of Clarksville, for appellees.

WILLIAMS, Justice.

This is a suit to enforce a tax lien for delinquent taxes due to the State of Texas, County of Red River, and Road District No. 1 in said county, on Lots 5 to 8, inclusive, Block 5, in Clarksville, Texas. Clarksville Independent School District intervened as a party plaintiff to enforce its tax lien on the property. Mann Bagby rendered these lots in gross for taxation in the name of "Estate of Ada Bagby, deceased." The tax rolls of Red River County carried the property for the years here involved as assessed to "Estate of Ada Bagby, deceased," and last known address "Clarksville, Texas." Mann Bagby of Clarksville, Texas, and all the unknown heirs and assigns of Ada Bagby, deceased, were named defendants in the petition. The attorney representing the State made affidavit attached to the petition that "the names of the heirs of Ada Bagby, deceased, parties to said suit, are unknown to affiant." Citation by publication was issued for "the heirs of Ada Bagby, deceased, whose names are unknown," and caused to be published by the sheriff of said county in the manner and for the length of time as provided for under Articles 2039 and 2040, R.C.S. of 1925. Mann Bagby was served with personal citation. He did not answer. On a hearing the court sustained a motion to quash the citation by publication urged by the attorney ad litem theretofore appointed by the court. Plaintiff declining to amend or cause further process to issue, the court dismissed the cause as to defendants cited by publication and rendered judgment in favor of plaintiff and intervenor by default against Mann Bagby.

The Court sustained the motion to quash the citation by publication on the grounds that: (1) The affidavit on which the citation was issued failed to recite "that after inquiry the names of the unknown heirs cannot be ascertained;" (2) the pleadings failed to disclose any effort on the part of plaintiff's attorney to ascertain from Mann Bagby the names of such heirs, and the evidence discloses that this attorney did not call upon Mann Bagby and make inquiry; (3) that this citation reflected the gross amount of taxes claimed, but failed to specify the amount claimed by each party plaintiff; and (4) that intervenor had not obtained service upon any of the defendants named in the suit.

The provisions of Chapter 10, Title 122 (taxation) of R.C.S. where applicable will control the procedure questions in tax foreclosure suits here presented. 40 T.J. p. 241; Young v. Jackson, 50 Tex.Civ. App. 351, 110 S.W. 74, writ refused; Rousset v. Settegast, Tex.Civ.App., 210 S. W. 219; Article 7342, R.C.S. of 1925, under this Title provides that "whenever * * * the name of the owner or owners of said * * * lots be unknown, then, upon affidavit of the attorney for the State setting out that the * * * owners are unknown to the attorney for the State and after inquiry cannot be ascertained, said parties shall be cited and made parties defendant by notice * * *." This article then prescribes the form of such notice and provides for publication once each week for three consecutive weeks. The last expression of the Legislature governing the procedure to be followed in suits on delinquent taxes and to enforce tax liens was enacted in 1937, designated as Article 7345b, Vernon's Annotated Statutes of Texas. This act also provides for the issuance and service by publication of notice in suits against unknown owners. Neither Article 7342 nor 7345b, supra, provides in express language for the issuance and service of notice by publication upon unknown heirs who may be the owners of realty in tax suits. There is no other statute under Chapter 10, supra, that expressly provides for the issuance and service of citation or of notice by publication upon unknown heirs as owners of realty.

Heirs of a deceased person whose muniment of title is of record are not unknown owners of real estate, but are known owners, even though the names of such heirs are unknown. Therefore the provisions of Article 7342, supra, are not applicable in obtaining issuance and service of notice by publication upon unknown heirs as owners of property in tax suits. Williams v. Young, 41 Tex.Civ.App. 212, 90 S.W. 940, writ refused; State Mortgage Corp. v. Affleck, Tex.Com.App., 51 S.W. 2d 274, 275, and decisions there cited; Underwood v. Pigman, Tex.Com.App., 32 S. W.2d 1102.

In Underwood v. Pigman, supra, the Commission of Appeals considered, as here, the procedure to obtain the issuance and service of notice or citation in "tax suit upon unknown heirs as owners." The court there gave effect to the provisions of Article 7328 under Chapter 10, which reads: "The proper persons * * * shall be made parties defendant in such suit, and shall be served with process and other proceedings had therein as provided by law in ordinary foreclosure suits in the district courts of this state." The court concluded that the law applicable to the quoted portion of said article is declared in Article 2040, R.C.S. The Commission of Appeals in State Mortgage Corp. v. Affleck, supra, likewise held Article 2040, R.C.S. applicable and advanced the further reason : "Unless there was some other statute applicable to the situation, the state would be powerless to subject any property, situated as this property was, to the payment of taxes due thereon, by reason of any tax law." Section 3 of Article 7345b enacted subsequent to the foregoing decisions contains a provision substantially the same as quoted above from Article 7328. Section 13 of Article 7345b provides: "The provisions of Chapter 10, Title 122 of the Revised Civil Statutes of 1925 shall govern suits brought under this Act except as herein provided." Article 2040 provides that if the plaintiff, his agent or attorney, shall make oath that the names of such heirs are unknown to the affiant, "the clerk shall issue a citation for such heirs * * *." It is apparent that this tax suit was being prosecuted against the unknown heirs of Ada Bagby, deceased. The affidavit made by the attorney for plaintiff complied with the requirements of this article.

The State of Texas, Red River County, and Road District No. 1 of Red River County were named as plaintiffs in this citation. The citation describes the amount of taxes due as follows: "The said * * * lots are situated in * * * and are described on said tax rolls as follows, together with the amount of taxes that are charged against each tract or assessment as follows: Lots 5 to 8, Block 5, * * * City of Clarksville in amount of $67.54. Penalties, interest and all costs allowed by law are to be calculated in...