Hargrave v. State , 10 S.W.2d 765 ( 1928 )

LEVY, J.

(after stating the facts as above). It is believed that there was no error in sustaining the special demurrers to the cross-action. The fact, if it was a fact, that the property of plaintiff in error, situated within the boundaries of the levee district, may have been damaged by the manner of constructing the levee improvements, or damaged on account of not constructing the improvements in accordance with the adopted plan, would not ordinarily be a defense to a suit for enforcement of the tax lien. 2 Cooley on Taxation, p. 1280 ; 26 R. O. D. § 337, p. 378 ; 37 Cyc. 1162. And treating the cross-action as a distinct cause of action for damages, there was no error in this case especially in dismissing it, since such action was barred by limitation.

The validity of the Act of 1915 (Acts 34th Leg., e. 146) and the method of assessing and collecting taxes thereunder although not assailed in this appeal, have been expressly determined by the courts, and it is unnecessary to again discuss the same. Rutledge v. State (Tex. Sup.) 7 S.W.(2d) 1071.

The question of limitation, in bar of the taxes, however, has seemingly been determined in accordance with the plaintiff in error’s contention, Rutledge v. State (Tex. Com. App.) 292 S. W. 164; and the Supreme Court has approved the holding in that case, Rutledge v. State, 7 S.W.(2d) 1071. The taxes fo.r 1921, 1922, and 1923 were barred, but the taxes for 1924, becoming due on the 1st of February, 1925, were not barred at the time suit was filed December 30, 1925.

The judgment is modified in so far as to deny recovery for the taxes, penalty, and interest, and the foreclosure of tax lien therefor, for the years 1921, 1922, and 1923; otherwise the judgment is in all things affirmed. The plaintiff in error to recover costs of appeal.