Clark v. Puls , 192 S.W.2d 905 ( 1946 )

On Motion for Rehearing. In their motion for rehearing, appellees contend that instead of rendering judgment for appellant on the reversal of this cause, this Court should have remanded the case for another trial. In support of their contention they urge that their original petition, on which the suit was tried and which was filed within two years from the date of the sale of the property, contains a tender of the amount required under Article 7283, Vernon's Annotated Civil Statutes, to redeem their property.

Article 7283 pertains to summary sales by the tax collector and is not applicable here. Section 12 of Article 7345b, Vernon's Annotated Civil Statutes, applies to redemptions from judicial tax sales in a suit of the nature of that brought by the City of Booker against Ed Puls. City of El Paso v. Forti, 142 Tex. 658, 181 S.W.2d 579. The statute provides that the owner of the property, or anyone having an interest therein, may redeem the property within the second and last year of the redemption period upon the payment of the amount bid by the purchaser at the sale, a one dollar tax deed recording fee, and all taxes, penalties, interest, and costs thereafter paid thereon, plus fifty per cent of the aggregate total.

The allegations of appellees' original petition relied upon as showing a tender are as follows:

"Plaintiff shows the court that the defendant Earl Clark is not entitled to be reimbursed for any sum paid by him in connection with said sale and purchase, by reason of the matters hereinbefore stated, but in the event and only in the event that the court should find or hold that the said Earl Clark is entitled to reimbursement, and only in such event, plaintiff still insisting that he is not entitled to any reimbursement, she here and now tenders to pay into court, or as the court may direct, any and all sums that would be and are legally chargeable against her said homestead property, here tendering to do full equity as may be determined under the constitution, law and facts of this case by the court."

Additional, and more particular, allegations are found in the prayer:

"That in the event it should be held or decreed that the said defendant Clark is entitled to any reimbursement that this plaintiff be required to reimburse only the amount of the lawful taxes, interest and penalty lawfully chargeable against and which is shown to be a lien enforceable against said homestead property under the Constitution and laws of this State, * * *"

The appellees' first supplemental petition, which was also filed within the two year period, contains this language:

"And answering further herein, plaintiff here now again tenders into Court and offers to pay and will pay all sums of money that the Court finds to be a legal and constitutional charge against her said homestead, and such as were legally and constitutionally chargeable against her said homestead, in said Cause No. 864, in the District Court of Lipscomb County, Texas, and at all times since the rendition of such judgment and at the present time, and as the Court may hereafter direct."

Giving all reasonable intendments to the language of these pleadings, we think the inescapable conclusion is that the appellees first wanted a determination of the amount of taxes secured by a lien on the homestead, as distinguished from those not so secured, for the collection of which suit was brought by the City of Booker; that their offer was based on such determination and was limited to the payment of the secured taxes involved in that suit and to secured taxes subsequently accruing. This falls far short of the appellant's bid of $3600 for the property, the one dollar tax deed recording fee, taxes, penalties, interest, and costs thereafter paid on the property, plus fifty percent of the aggregate total, as required by the redemption statute.

At most, the appellees' offer was to pay what the trial court might direct. They were not litigating the amount of appellant's bid at the sale. The court could not direct them to redeem the property, nor could the court properly determine the amount required to redeem when that issue was not raised. The issue raised was the extent to which appellant was entitled to reimbursement on account of taxes paid by him on behalf of the appellees, and not the amount to which he was entitled under the redemption statute.

It being our opinion that appellees' pleadings do not contain an offer to redeem the property, the motion for rehearing is overruled.