Tate v. McGraw, 11251.

• Decision Date: 17 May 1934
• Docket Number: No. 11251.,11251.
• Citation: 70 S.W.2d 467
• Parties: TATE v. McGRAW.
• Court: Texas Court of Appeals

Page 467

70 S.W.2d 467

TATE v. McGRAW.

No. 11251.

Court of Civil Appeals of Texas. Dallas.

May 17, 1934.

Rehearing Denied April 21, 1934.

Appeal from District Court, Grayson County; R. M. Carter, Judge.

Action by Roy McGraw against M. G. Tate wherein defendant filed a cross-action. From a judgment in favor of plaintiff, defendant appeals.

Reversed and rendered.

Hamp P. Abney and N. B. Birge, both of Sherman, for appellant.

Webb & Webb, of Sherman, for appellee.

LOONEY, Justice.

The disposition made of the case does not require any statement to be made of the pleadings, other than to say that the action involves the title to 17 acres of land, the issue as to ownership was tendered by each party, McGraw sought recovery in a formal action of trespass to try title, and Tate, in same manner, sought recovery in a cross-action. McGraw claims through a sheriff's deed under a default judgment in favor of the state against Tate in a tax suit, and, unless he was thus divested of title, the court erred in rendering judgment against him.

The land was the homestead of Tate and family and had been since 1919. The state, through proper officials, instituted suit against him, returnable to the October term, 1926, seeking recovery of delinquent state, county, and school district taxes against the land, also $3 poll taxes, the statutory penalty and costs of suit, asserting its lien, which was foreclosed upon the land, to satisfy taxes due thereon, also the poll taxes, penalty, and court costs; the decree directed the sheriff to seize and sell the land in the ordinary form, and with the proceeds to satisfy the taxes, interest, penalty, costs, etc.

Thus it appears that Tate's homestead was ordered sold for the payment, not only of taxes due thereon, but for accrued penalties, poll taxes, and court costs; and accordingly, on May 27, 1927, an order of sale issued, under which the sheriff advertised, and on July 5, 1927, sold, the land. T. W. McGraw became purchaser for $35, and later, conveyed to plaintiff, who, at the expiration of the statutory period, was placed in possession, under a writ authorized by the default judgment. The record discloses further that, after being placed in possession, plaintiff destroyed 30 peach trees growing upon the premises, of the value of $2 each, that the rental value of the premises was $50 per annum, and that the land was valued for taxation at $410.

The court concluded, as a matter of law, that, by failing to answer the state's suit, Tate estopped himself to raise the homestead question in avoidance of the foreclosure proceedings and sheriff's deed, and was not permitted to make a collateral attack upon the judgment; hence was not entitled to recover either the land, damages for the fruit trees destroyed, or the rental value of the premises.

The trial court's conclusions are defended by appellee (excerpts from the brief of counsel) as follows: "We have a judgment of the district court, regular on its face, with service upon the defendant. The matters that he sets up now as a defense to this suit might have availed him, if he had plead them in that case. He would have had an opportunity there to have shown the truth of his statements, and the State would have had the opportunity of questioning them, but he did not see fit to enter his plea, neither did he see fit to appeal therefrom, and for that reason he cannot now complain that the judgment was not regular on its face and valid. * * * We submit that the court was not in error in holding that said deed under said judgment estopped the defendant from claiming now any interest in the land, and that this judgment should be affirmed."

It is obvious that the idea of the trial court was, and the contention of appellee's counsel is, that, having failed to answer the state's tax suit, appellant estopped himself to assert his homestead exemption in avoidance of the sheriff's deed; such defense being in effect a collateral attack upon the judgment, which was not permissible.

While Tate failed to answer the suit, yet, on October 2, 1926 (appearance day), he paid the district clerk all accrued costs, amounting to $8, also paid the tax collector the full amount of taxes, penalties, and interest claimed by the state; the collector executing a redemption receipt evidencing such payment, reciting the docket number of the cause, showing conclusively that the payment was in full settlement of the taxes, penalties, and interest sued for. In this changed status, we think it became the plain duty of the official in charge of the litigation to have dismissed the suit, as the state had no lien upon or salable interest in appellant's land after the cause of action was satisfied. However, the suit was not dismissed; on the contrary, a judgment by default was taken under which appellant's homestead was sold,...