Bente v. Sullivan , 52 Tex. Civ. App. 454 ( 1908 )

This is a suit by Annie Sullivan, filed in November, 1905, against the appellant as the executor of the will of William Sullivan, deceased, to have set apart to her certain real estate, known as lots 6 and 7, in block 25, in the city of Houston, as her homestead, and a year's allowance or exempt personal property in lieu thereof, and exempt personal property to which she is entitled as the head of a family or an allowance in lieu thereof, and for the recovery of $150 against the estate of William Sullivan, deceased, due physicians by said estate for medical attention rendered during the last illness of William Sullivan, deceased, the account for which having been purchased by appellee and assigned to her by Drs. Stewart, Redd Stewart, and for a general decree protecting her homestead interest in the property and the lots described, and providing for all exemptions she would be entitled to under the law as the surviving wife of William Sullivan, deceased.

The case was tried before the court without a jury and judgment rendered in appellee's favor awarding to her and setting aside to her lots 6 and 7 and the improvements thereon, as her homestead, and decreeing her an allowance of $400 in lieu of exempt personal property, and judgment in her favor for $150, medical fees, and setting apart to her a bedroom suite of furniture and awarding her the parlor and diningroom and kitchen furniture as exempt property, which was in the building at the time of the death of her husband, William Sullivan.

There is in the record findings of fact and conclusions of law of the trial court, which we adopt and approve, which dispose of all of the principal questions raised in appellant's brief. The findings and conclusions are somewhat lengthy, and on this account we will condense the facts which we deem important to be stated in order to understand the questions passed on in this opinion.

The appellee, Annie Sullivan, who at the time of this trial and subsequent to the filing of this suit was Annie Evans, she having married W. M. Evans, married William Sullivan in November, 1879, and on the 22d day of April, 1882, William Sullivan purchased the lots in controversy, being 150 feet on Congress Avenue, by 100 feet in depth, for a consideration of $5000. Sullivan immediately erected on these lots a three-story brick house, which he and his wife, appellee Annie Sullivan, occupied as a residence and a hotel, which they continuously occupied and used as a residence and hotel up to the date of Sullivan's death in August, 1904, since which time appellee has continued to reside on the property and conduct the hotel as before Sullivan's death. In 1894 the city of Houston filed suit against Sullivan and his wife for delinquent taxes, which suit remained upon the docket until February 16, 1900, when at that time judgment was rendered against Sullivan and wife in favor of the city for $2300, for the delinquent taxes due for certain years prior to that time up to the year 1897, with an order of court foreclosing the tax lien on the lots in question. These lots and the property in question under this decree were on the third day of April, 1900, sold by the sheriff to the city of Houston. Thereafter, on the 4th day of May, 1900, the city of Houston, for a consideration of $2426.95, sold the property in question to one B. J. Dodge. On May 7, 1900, Sullivan and wife filed a suit against Dodge and the city of Houston, seeking to set aside the sheriff's sale for irregularities, and also to set aside and cancel the deed from the city of Houston to Dodge. There was no trial of this suit, but on the 7th of June, 1900, it was compromised and settled by an agreement between Sullivan and wife and Dodge. According to that agreement a judgment was entered against the Sullivans in favor of Dodge for the property. At the same time and as a part of the same transaction, Dodge executed to the Sullivans for and in consideration of $4000, evidenced by certain notes, a deed of conveyance to the property. During the time mentioned, the Sullivans remained in possession, occupying the property as their homestead. They were never ousted, nor did they ever part with possession, and they so continued to remain until the death of William Sullivan, in 1904. William Sullivan left a will, which was properly probated, and under which the appellant claims the property as executor. It is unnecessary to mention the terms of this will, except to state that the appellee Annie Sullivan declined to accept under it, so far as it affected her interests, and preferred to take what she was entitled to as the widow of William Sullivan. This is an independent will, and the executor is operating and acting under it free of orders of the Probate Court. The trial court found, and there is evidence to support that conclusion, that the estate of William Sullivan was insolvent.

Fifty-five assignments of errors are presented in the briefs, and we have given them all careful consideration and conclude that they present no reversible error. In this opinion we will not undertake to discuss all of the assignments, but will only notice those which in our opinion present the important questions in the case.

It is contended by appellant that by reason of the judgment in favor of the city for the back taxes due upon the property and the sale thereunder to the city and the sale by the city to Dodge and the judgment in his favor against the Sullivans, the latter lost their title to the property, which had the effect of terminating their then homestead interest, and which interest only became reestablished when the property was conveyed to them by the deed from Dodge. The trial court found that at the time of the designation of the homestead in 1882 the property was of less than $5000 in value exclusive of the improvements, and also found that the value of the lots in the spring of 1900, exclusive of the improvements, was about $12,000. The appellant contends that the homestead designation is to be determined at the time that the Sullivans reacquired the property from Dodge, and that the value existing at that time will govern, which the court has determined to be $12,000, exclusive of the improvements, and the excess of this over $5000, the amount fixed by the Constitution, would be subject to administration by the executor. The time that the judgment by the city was obtained and the sale made and judgment entered in Dodge's favor against the Sullivans and the deed made to them by Dodge was less than two years, in fact, all of these transactions occurred within a few months, during which time the Sullivans were in possession, claiming the property. Under the Act of 1899, as well as the charter of the city of Houston, they had the privilege of redeeming within two years from the date of the tax sale; and the trial court held that the effect of the transaction between them and Dodge was tantamount to a redemption. This conclusion of the court below is amply supported by evidence. The law does not require any particular form of procedure in order to assert the right to redeem, but any transaction by which the purchaser under the tax sale and the owner of the property accomplish this purpose will be sufficient. It is clear from the facts that that was the purpose and object of the Sullivans in purchasing from Dodge. The property at that time was worth many thousands of dollars more than the $4,000 which the Sullivans agreed to pay Dodge therefor. Dodge had just acquired it from the city and the Sullivans promptly brought suit to have the sale set aside. Instead of trying the case, it was agreed that a judgment should be entered in favor of Dodge, he at the same time executing a conveyance back to the Sullivans for the property for a consideration, as before said, small in comparison to the then actual value of the property.

It has been universally held that where the statute confers upon the owner the right to redeem, his title is not extinguished until the time for redemption has expired. The opinion generally entertained upon this subject is very accurately expressed by Judge Cooley in his work on Taxation, second ed., p. 542: "The purchaser has no title to the land until the time for redemption has expired. He has consequently no constructive possession of the premises and no more right to go upon and make use of them than any stranger to the title would have. His entry upon the premises would be a trespass upon the possession, actual or constructive, of the owner who may recover against him for injury committed. Redemption gives no new title; it simply relieves the land from the sale which has been made, and this is true, whether the redemption is made before the statutory time has expired or by consent of the purchaser afterwards."

In opposition to an application of this principle, the appellant insists that as the taxes for which the city obtained its judgment accrued for years prior to the time that there existed any general law or provision of the charter of the city which provided for redemption, the rule could have no application. It will be observed that the judgment enforcing the right of the city to these taxes was rendered after the general Act of 1899 and the city charter providing for redemption took effect. The rule is general that a tax sale and the rights acquired thereunder are to be determined by the law in force at the time of sale (27 Am. Eng. Ency. Law, 2d ed., 972); and we think there is no force in the suggestion offered by the appellant that the right to redeem would not apply to a sale made under the judgment in question.

Furthermore, we do not think that the appellant is in a position to raise this question. His rights would be no greater than those of the testator under whom he claims, and the judgment rendered by the city against him in all of its parts, especially that which was favorable to his interests, would be binding upon the executor. That judgment is not in issue in this case; there is no attack made upon it, and if it preserved a right in favor of Sullivan, it would bind his executor. That judgment contained a recital limiting the right of a purchaser thereunder to possession for two years after the date of sale. In other words, a writ of possession could not issue under this judgment until the expiration of two years from the date of sale under it. This was clearly incorporated in the judgment for the purpose of preserving the right of the Sullivans to redeem, and, as said before, long before this right expired the Sullivans did redeem.

If there could be any force whatever in the suggestion offered by the appellant that the statute and charter allowing the redemption would not apply to taxes that accrued for years in which there was no statute, then this judgment by its terms and effect granted that right to Sullivan. We do not know the circumstances under which that judgment was obtained. It might have been agreed to by the parties; the city may have assented as one of the conditions of obtaining judgment against Sullivan that it should include a recital allowing the latter to redeem. At least, the judgment containing such recital must be presumed to be correct; and certainly, the law will not allow the appellant as executor of Sullivan, to complain of a recital which was evidently at the time it was made to Sullivan's advantage.

The brief contains objection to the action of the trial court in allowing evidence to show the purpose and consideration under which the judgment was rendered in favor of Dodge against the Sullivans. The purpose of this testimony was to show that it was a compromise judgment, and the amount agreed to be paid, and that a part of the consideration of the same was that the judgment would be rendered in favor of Dodge, and Dodge was to reconvey back to the Sullivans for a consideration of $4000. The court went into this for the purpose of ascertaining the nature of that transaction, and what effect should be given to it as indicating whether the purpose was to redeem. We think that the testimony was admissible. It did not have the effect of contradicting any recitals contained in the deed or of the judgment in Dodge's favor, but it was merely in explanation of the transaction, offered to show its consideration.

It is also claimed by the appellant that there is about twenty by thirty feet of the hotel building, a part of the property in controversy, which had been abandoned as a part of the business or residence homestead, and was subject to administration by the executor. The court disposed of this against the contention of appellant in its findings, holding, in effect, that the facts relating thereto brought this question within the rule announced in Forsgard v. Ford,87 Tex. 185. From the facts relating to this question, it appears that this portion of the building can not be separated or divided or partitioned from the main building, that it is all a part of the same structure, and in our opinion this question is controlled by the case referred to.

There is a suggestion in the brief to the effect that the District Court had no jurisdiction of this controversy. It is not the purpose of this suit to set aside any provision of the will of Sullivan, deceased, but it was merely an assertion of right by the appellee to certain property which she was entitled to recover as against the executor. It was a contest as to the possession of certain property and the recovery of claims against the estate. The executor was acting independently of the Probate Court, and anyone aggrieved by a denial of right by him could bring his suit in the District Court if it had jurisdiction of the amount or the subject of controversy.

It is claimed by appellant that the trial court erred in awarding Mrs. Sullivan the entire amount sued for, as shown by the account of the physicians which was assigned to her. There are some facts in the record tending to show that the executor recognized the right of the physicians to the extent claimed by the appellee, that is, $150. They claimed a considerable sum more than this, but the $150, it seems, was reached by agreement between the representative of the physicians and the executor. The appellee purchased from the physicians the account, and we know of no reason why she should not be entitled to recover the full amount agreed to be paid by the executor.

It is claimed by the appellant that as Mrs. Sullivan was married at the time that the judgment in this case was entered, she was not entitled to the allowances allowed by the statute to surviving widows. We will not undertake to lay down a general rule upon this subject, but we will merely dispose of it by saying that, under the facts of this case, we are of the opinion that Mrs. Sullivan was entitled to the allowances established by the judgment and to the exempt property set aside to her. A case may arise in which the statute allowing such exemption would not apply; that is a question we will not undertake to determine. Without an extensive investigation upon this question, we have so far been unable to find any Texas case that has a direct bearing upon it. The case of Pressler's Heirs v. Robinson, 57 Tex. 460, by analogy, seems to justify the conclusion that the marriage of the widow does not cut her off from the exemptions she would be entitled to.

We find no error in the record and the judgment is affirmed.

Affirmed.

Writ of error refused.