Williams v. Young

• Decision Date: 23 November 1905
• Citation: Williams v. Young, 90 S.W. 940, 41 Tex.Civ.App. 212 (Tex. App. 1905)
• Parties: WILLIAMS et al. v. YOUNG et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

90 S.W. 940

WILLIAMS et al. v.YOUNG et al.^*

Court of Civil Appeals of Texas.

November 23, 1905.

On Motion for Certiorari, December 21, 1905.

Appeal from District Court, Houston County; John J. Wood, Judge.

Action by H. B. Williams and others against J. W. Young and others.From a judgment for defendants, plaintiffs appeal.Affirmed.

J. M. Crook, for appellants.Adams & Adams and Nunn & Nunn, for appellees.

REESE, J.

This suit was begun by a motion by appellant to set aside a judgment, rendered in a tax suit, which had been rendered against the defendants in said suit for the recovery of taxes and foreclosure of lien upon the W. P. Theobald 640-acre survey in Houston county.The defendants in said tax suit were "unknown owners and the unknown heirs of Hardy Ware, deceased."There was judgment in that suit against the defendants for the taxes claimed and foreclosure of the lien, and at a sale under said judgment the land was bought by J. E. Downes, from whom the title conveyed by the sale passed, after several mesne conveyances, to the Southern Pine Lumber Company.The plaintiffs in the motion, H. B. Williams and others, are the heirs at law of Hardy Ware, deceased, and owners of the land, unless the title passed by the sale under the judgment aforesaid.The defendants are the Southern Pine Lumber Company and its vendors, immediate and remote, under the tax sale.After filing the motion, the plaintiffs amended their pleading, embodying with the suit to set aside the judgment an action in trespass to try title to recover the land.There was judgment for defendants, and the plaintiffs in the suit appeal.

The judgment in the tax suit is assailed primarily upon the ground that it is void as to appellants, the heirs of Hardy Ware, deceased, on account of the insufficiency of the preliminary process to give the court jurisdiction of the cause as to them.If this service was sufficient to give the court jurisdiction, the subsequent proceedings thereunder were sufficient to vest in the Southern Pine Lumber Company, one of the appellees, a good and sufficient title, as against appellants, to the land.If such service was not sufficient for that purpose in a direct attack upon the judgment, which is the character of the present suit, appellee contends that it is an innocent purchaser of the land for value and without notice, under a judgment regular on its face.The service was by publication against "unknown owners and unknown heirs of Hardy Ware, deceased," all being joined in one citation, which contained all of the necessary allegations provided by the statute in case of suits for taxes against unknown owners.(article5232 O, Sayles'Ann. Civ. St. 1897).The citation was published for three weeks, in accordance with the provisions of that article of the statute.The petition is in the ordinary form for such suits, and complains "of the unknown owner and the unknown heirs of Hardy Ware, deceased, whose residence is unknown to plaintiff."Attached to the petition is an affidavit of the county attorney, in which he swears that "the defendants * * * are unknown to affiant and after inquiry cannot be ascertained, and that the names and the residence of said defendants are unknown to him and after inquiry cannot be ascertained."

It is objected by appellants that, in order to give the court jurisdiction to render a judgment foreclosing the interest of the unknown heirs of Hardy Ware, deceased, this citation should have been published for eight weeks, as provided in cases of suits against unknown heirs generally by article 1236, Sayles' Ann. Civ. St. 1897, instead of three weeks, as provided in tax suits against unknown owners.The trial court found, as conclusion of law, that the provisions of the delinquent tax act of 1897(article5232 O, Sayles'Ann. Civ. St. 1897) as to service of citation upon unknown owners also applied to the heirs of deceased persons whose names and places of residence were unknown—such persons being in fact "unknown owners"—and superseded, in tax suits against such parties, the provisions of article 1236.It was therefore held by the trial court that the service as to the unknown heirs of Hardy Ware, deceased, in the tax suit was good and sufficient, in which conclusion the writer is inclined to agree, and that the judgment should be affirmed on that ground also.

The Southern Pine Lumber Company, present owner of the land under the tax sale, pleaded that it bought the land in good faith within two years after the date of the judgment, paying full value therefor and believing that it was getting a good title; that the judgment is regular on its face, and it is entitled to be protected as an innocent purchaser in good faith.The judgment in the tax suit recites that the defendants had been duly cited by publication.The trial court found, as conclusion of law, that the defendant was a purchaser in good faith.No question is made as to the adequacy of the consideration paid by the Southern Pine Lumber Company or any of its vendors, nor was it claimed that they had any actual notice of the defect in the service upon the unknown heirs of Hardy Ware, or of any other facts which would invalidate the judgment.Unless the Southern Pine Lumber Company was required to go behind the judgment and its recitals as to service and take notice of the alleged defect in the service upon the unknown heirs of Hardy Ware, clearly it was an innocent purchaser without notice, and entitled to be protected as such.This question was before this court in the case of Carpenter v. Anderson, 77 S. W. 291, 8 Tex. Ct. Rep. 491, and it was there held that, conceding that the service was insufficient to give the court jurisdiction, such judgment was not void, but voidable only;...