State v. Hunt , 1918 Tex. App. LEXIS 1252 ( 1918 )

Section 1 of Act April 3, 1915 (Gen. Laws, p. 250, c. 147 [Vernon's Ann.Civ.St.Supp. 1918, art. 7687a]), made it the duty of the tax collector of Cass county, not later than May 1, 1916, to mail to the address of the "record owner" of the 50 acres of land referred to in the statement above "a notice showing the amount of taxes appearing delinquent or past due and unpaid against" said land, according to the delinquent tax records of said county on file in his office. We agree with the trial court that a discharge by the tax collector of the duty thus imposed upon him was a prerequisite to the existence of a right in the state to maintain its suit against appellee. State v. Seidell,194 S.W. 1118. But we do not agree that it did not appear that the tax collector had not discharged the duty. The conclusion of the trial court that it did not so appear was predicated on his finding that the Williamses were not the "record owners" of the land within the meaning of the act. We think they were, and that the tax collector complied with the requirement of the law when he mailed notices to them as found by the trial court. As we view it, there is nothing in the language of the act which indicates that the Legislature meant by "record owner" the owner as shown by the deed records of the county, and not the owner as shown by the tax collector's records. On the contrary, we think the declaration in section 2 of the act (Vernon's Ann.Civ.St.Supp. 1918, art. 7687b) that "in making up the notices * * * provided for in section 1 of this act it shall be the duty of the tax collectors of the various counties in the state to rely upon the delinquent tax records" compiled as specified, and the provision in the said section 2 that, "to enable the tax collector to comply with the provisions of section 1 of this act, it shall be the duty of the tax assessors of the various counties of the state to hereafter enter the post office address of each and every taxpayer after his name on the tax rolls" indicate that the Legislature meant by "record owner," as used in section 1, the owner as shown by the delinquent tax records kept in the tax collector's office. Therefore we are of opinion the trial court erred when he concluded that the state was not entitled to maintain the suit against appellee so far as it was for the taxes assessed against the 50 acres of land, together with interest and penalties which accrued thereon, and costs, and so far as it was to foreclose a lien on the said land existing to secure the payment of same.

But we agree with the trial court that the state did not have a lien on the land to secure the payment of either the poll taxes assessed against the Williamses or the taxes assessed against them on account of their ownership of personal property. The general rule is that taxes are never a lien on property unless expressly made so. 2 Cooley, Tax'n, p. 865. The lien created by section 15 of article 8 of the Constitution upon "landed property" is only for taxes assessed against such property; and so of the lien upon real property provided for by article 7528, Vernon's Statutes.

The judgment will be reversed, and the cause remanded, with instructions to the court below to ascertain the amount unpaid of the taxes assessed against the 50 acres of land for the years 1888 and 1893, together with the interest and penalties which have accrued on same, and the costs, and, having done so, to render judgment for the amount, and foreclosing the lien on said land in favor of the state, and directing the sale thereof to satisfy such taxes, interest, penalties, and costs.