Patton v. Minor , 103 Tex. 176 ( 1910 )

We copy the following statement from the opinion of the Court of Civil Appeals:

"This suit was brought by plaintiff in error against defendants in error, in the form of an action of trespass to try title, to recover possession of a certain parcel of land described as lot 15, block 103, of Campbell's Addition to the city of El Paso, Texas; or, in the alternative, to recover $175 with six percent interest thereon from March 15, 1904.

"The defendants pleaded not guilty and the ten years statute of limitation.

"The case was tried without a jury and judgment rendered in favor of defendants upon their plea of limitations and in favor of plaintiff on his alternative demand. The nature of the case will more fully appear from the following conclusions of fact and law, which we adopt as our opinion, filed by the trial judge, the Hon. J.M. Goggin.

"``Conclusions of Fact. — First. I find that some time during the year 1894, defendant Minor took possession of the lot sued for herein, erected a substantial dwelling thereon, into which he then moved, and that about seven months thereafter the defendant, Rojas, having built on said lot an addition to Minor's house, moved into same, and that both said Rojas and Minor have continued to reside thereon without intermission up to the present time; that during said time they continuously occupied, used and enjoyed said lot as their homestead, and have always claimed the same as their property. That the possession from the time of their entry in 1894, until the present has been continuous, exclusive and hostile to the claim or claims of the unknown owners, and to that of all other persons who might have or did assert an interest in said property, and that during said occupancy they claimed the same as their joint property and homestead.

"``Second. That the taxes on said property not having been paid for the years 1889 to 1900, inclusive, the State on the 6th day of September, 1902, acting through its attorney, filed suit for taxes, costs, etc., against the unknown owners, perfected service by citation by publication, and on the 15th day of December, 1902, obtained judgment against the unknown owners of said property for taxes, costs, etc. That thereafter on the 15th day of March, 1904, the sheriff in pursuance of an alias order of sale issued out of said tax judgment sold said property to satisfy same, and the property was regularly bid in and knocked down and regularly deeded by the sheriff to one Daniel P. Holland. That said judgment, among its other recitations, contained one to the effect that the unknown owners had been duly and legally cited by publication as the law directed. That thereafter by quitclaim deed the said Daniel P. Holland, joined by his wife, conveyed said lot so purchased by him, to George M. Patton as executor of the estate of Carrie C. Higgins, and the said Patton is now claiming said property, and sues herein for same under said alleged tax title. The defendants claim against said title under the statute of ten years. I further find that said Holland bid in said property at said sale for the amount of one hundred and seventy-five dollars which was paid as stated in his tax deed executed to him by the sheriff.

"``Third. That neither of the defendants were ever cited, or had notice of any character, of the pendency of the suit for foreclosure of the tax lien by the State, nor knew anything of the judgment obtained in that case until they were notified to vacate shortly before the institution of this suit; but as aforesaid, at the time of the institution of said suit, during its pendency, at the time of the judgment and sale, and continuously up to the present, they have been in possession of said property, occupying, using and enjoying the same as aforesaid as their homestead. That plaintiffs claim under said tax title alone. That plaintiffs show no possession of the land in controversy at any time.'"

The only question involved in this litigation depends for its solution upon the effect to be given to the following provisions of the Constitution and the statutes of the State:

Section 15 of article 8 of the Constitution reads:

"The annual assessment made upon landed property shall be a special lien thereon, and all property, both real and personal, belonging to any delinquent taxpayer shall be liable to seizure and sale for the payment of all the taxes and penalties due by such delinquent; and such property may be sold for the payment of the taxes and penalties due by such delinquent, under such regulations as the Legislature may provide."

Article 5086, Sayles' Civil Statutes, reads as follows:

"All taxes upon real property shall be a lien upon such property until the same shall have been paid."

From article 3351, Sayles' Civil Statutes, we quote as follows:

"The right of the State shall not be barred by any of the provisions of this chapter."

The trial court and the Honorable Court of Civil Appeals held that because the unknown owner of the property in question could not have recovered against the defendants in this suit, therefore, the purchaser of the property at a sale made by the State for taxes can not recover of the possessor of the said property in whose favor a period of ten years' occupancy had expired prior to the institution of this suit. We are of opinion that the courts erred in that holding.

Reliance is placed upon Jordan v. Higgins, 63 Tex. 150, in which Judge Stayton, for the court, said:

"Under this state of facts, the appellant's action was barred at the time he brought this suit, just as would have been the former owner had the tax sale not been made and had the action been instituted by him."

We are not inclined to agree to the conclusion announced by the learned judge in that case. In the facts, the two cases are clearly distinguishable, but the same principle underlies that decision that controlled the Court of Civil Appeals in its decision in this case. In Jordan v. Higgins the sale of the land was made by a tax collector without judicial proceeding, while in this case the sale was made under a judgment of the District Court upon regular proceeding according to the statute. In the Higgins case the statute of limitation was complete before the sale was made, while in this case the sale was actually made and the property deeded to the purchaser before the expiration of ten years as claimed by the defendants.

By virtue of article 5086, copied above, that lien continued "until paid," and such claim was not subject to the bar of the statute, therefore, the case of White v. Pingenot, 90 S.W. 672, is not applicable to this case. We must look to the Constitution and statutes for the rule by which to determine the rights of the parties to these lots. The defendants in error had no title at the institution of this suit, therefore, were not proper parties thereto, but the judgment bound them as well as all other persons although not served with notice. Art. 5232o, Rev. Stats. There is no advantage to them from being in possession. The fallacy in the decision of the trial court is the holding that because defendants were holding adversely to the real owner therefore the State could not pass to a purchaser at a tax sale superior title to that of the owner. In one sense this is correct, but in its application to the facts of this case it is not correct.

To test the defendants' position fairly we will suppose that the ten years' possession had elapsed before the institution of the suit and the occupants were made defendants to the suit to foreclose. If they had pleaded that the State's lien was barred by limitation the plea could not have prevailed, or if at the sale, which was made, the State had purchased the property, and this suit had been filed in the name of the State, the plea of limitation could not have prevailed. If the State by purchasing at the sale could acquire a good title by a suit against defendants, it could recover notwithstanding the unknown owner would be barred by ten years' possession by the defendants. Having purchased the land the State could have conveyed to the plaintiffs a title which could not be defeated by this plea of limitation.

Can it be said that the State had a right to foreclose its lien upon this land and acquire the title by sale to itself, but could not by a sale to another confer such title upon the purchaser as would be equal to the State's lien? Such a position could not be maintained and probably would not be asserted, yet the judgment in this case expresses that illogical conclusion.

It is therefore ordered that judgment be here entered that the plaintiff in error Patton, recover of the defendants in error the lots in controversy and all costs.

Reversed and rendered.