Hume v. Carpenter , 1916 Tex. App. LEXIS 925 ( 1916 )

While concurring in the result reached in this case, I do not indorse all that is said in the opinion of Mr. Justice RICE. My views as to what is necessary to constitute an estoppel in pais were expressed in Westbrook v. Guderian, 3 Tex. Civ. App. 406, 22 S.W. 59, and they have undergone no change. As to Mr. Atkinson's authority to so act for the improvement company as to estop that corporation, I think the proof was sufficient. He was its secretary, treasurer, and general manager, and testified that he managed all its business, including the payment of taxes; and while, by force of statutory law, he could not, acting alone, execute a deed that would bind the corporation, he was in other respects the corporation's alter ego or other self and authorized to act and speak for it. However, I do not think the question of estoppel is in the case. When Street, the government's attorney, interviewed Atkinson concerning the ownership of the land, he did not do so as an intending purchaser at a future tax sale; and there was nothing to indicate that he was eliciting information for the purpose of transmitting it to others, or that Atkinson intended that such information should be so transmitted. In fact, Street did not become a purchaser at the tax sale, and therefore no estoppel could be asserted as to him; and, for the reasons just stated, as well as for other reasons, no estoppel can be based upon Atkinson's representations to Street.

Furthermore, it is difficult, if not impossible, to see how the question of estoppel could arise as to the validity of the tax title. The proceedings which resulted in the tax sale seem to have been regular; and the deed made by the sheriff in pursuance thereof vested title in the purchaser, unless it be shown that, at the time the suit was instituted, Street, the officer who represented the state and made the affidavit of unknown ownership, either knew, or by the exercise of reasonable diligence could have known, that the improvement company was the owner of the property. If he had such knowledge or failed to exercise such diligence the tax title is void; but if he did not have such knowledge and exercised proper diligence in that regard, then that title is valid, although the facts which show the exercise of proper diligence may not be sufficient to constitute an estoppel.

Those issues should have been submitted to the jury, and their answers thereto would have settled the question of title. The fact that the deed records of the county show an apparent title in the corporation is not conclusive evidence as to Street's knowledge of ownership, because the corporation could have parted with its title without the evidence thereof having been placed of record; and if, in the exercise of proper care and diligence, Street concluded it had done so, and if, after exercising like care and diligence, he could not ascertain who was the real owner, then the ownership was unknown to him, and the tax title is valid.