White v. Hidalgo County Water Improvement Dist. No. 2

• Decision Date: 14 March 1928
• Docket Number: (No. 7945.)
• Parties: WHITE et ux. v. HIDALGO COUNTY WATER IMPROVEMENT DIST. NO. 2 et al.
• Court: Texas Court of Appeals

6 S.W.2d 790

WHITE et ux. v. HIDALGO COUNTY WATER IMPROVEMENT DIST. NO. 2 et al.

(No. 7945.)

Court of Civil Appeals of Texas. San Antonio.

March 14, 1928.

Rehearing Denied April 25, 1928.

Appeal from District Court, Hidalgo County; J. E. Leslie, Judge.

Suit by M. E. White and wife against the Hidalgo County Water Improvement District No. 2 and others. From the judgment, plaintiffs appeal. Reversed and remanded.

J. G. Grissom, of Donna, and Neal A. Brown, of Edinburg, for appellants.

D. C. Hogan and Oliver C. Aldrich, both of San Juan, D. F. Strickland, and J. Q. Henry, both of Mission, E. A. McDaniel, of McAllen, and J. F. Ewers, of Mission, for appellees.

FLY, C. J.

This suit originated through M. E. White and his wife, Cora B. White, who sued Hidalgo county water improvement district No. 2, Alamo Land & Sugar Company, J. F. Ewers, trustee, C. H. Swallow, Citizens' State Bank of Donna, and J. W. Scoggins. Appellants dismissed suit as to the two last named parties, the Alamo Land & Sugar Company entered a disclaimer, and the issues were then only between appellants and the water improvement district, Ewers, trustee, and C. H. Swallow. The sum and substance of the suit was an attack on a judgment previously rendered in the same district court, wherein a lien for taxes was foreclosed in favor of the water improvement district as against lot 3, block 8, out of the Alamo Land & Sugar Company's subdivision of land in Porcion 72, Los Torritas, Santa Anna and El Gato grants, situated in Hidalgo county. The judgment as well as proceedings thereunder were assailed, including a deed under execution or order of sale, made by a sheriff to said land in favor of C. H. Swallow. It was alleged that Swallow gave the water improvement district a deed of trust on the land; J. F. Ewers being trustee therein. There were 50 paragraphs in the petition, but the court sustained a general demurrer, and incidentally a number of special exceptions to the petition.

After alleging that a suit was filed on December 5, 1923, by the water improvement company against M. E. White and other persons for an indebtedness of $102.20 for taxes alleged against the said land for the years 1920 and 1921, and that it was sought to foreclose a lien for said taxes on said land, it was alleged that on September 4, 1924, judgment was rendered foreclosing the lien on the land for taxes and penalties in the sum of $129.08, and a sale ordered, under which Swallow purchased the land on January 6, 1925, for $192.62.

Then follow the grounds of attack on the validity of the judgment, which are:

"That none of the prerequisites provided for by the constitution and laws of Texas before filing suit for delinquent taxes in Hidalgo county water improvement district No. 2 by said district, or for taking judgment issuing an order of sale, selling, making a deed thereto, and placing purchaser in possession, thereunder, were complied with by Hidalgo county water improvement district No. 2; and that those prerequisites attempted to be executed were wholly void.

"That the tax levy for the years 1920-1921 were not made and signed by the officers of said district authorized to make such levies.

"That plaintiffs, or either of them, did not render said land for taxes for either the years 1920 or 1921 and the tax assessor of said district did not make out an assessment list for either of the years 1920 and 1921 against said land, or place an assessment on same, as required by article 7659, R. S.; that the purported assessment lists for said years were wholly void for want of description of said land, assessment of same, and affidavit thereto; that the directors of said district failed to appoint three commissioners, as required by article 7661, R. S., to act as a board of equalization for either of said years; but, if such board was appointed, it fixed the valuation by the zone system, an arbitrary method, and not by the reasonable market value of said land, and fixed a valuation greatly in excess of other lands similarly located and improved.

"That the tax assessor failed to furnish the board of equalization a list of said land; but, if he did furnish same, then said board failed to approve said list and return same to said assessor that he might make up his general rolls therefrom.

"That said assessor failed to make up his general rolls for said years and return same to said board for final approval, as required by article 7667, R. S.

"That said tax assessor failed to make up duplicate rolls for said years, and the said board failed to approve such rolls, as required by article 7669, R. S.

"That the directors of said irrigation district failed to prepare a list of lands in said district to be known as the `delinquent tax roll,' including plaintiffs' said land for said years; but, if such roll was prepared, it...