Seymour v. Schwartz

PER CURIAM.

This appeal was transferred, by order of the Supreme Court, from the El Paso Court of Civil Appeals to this Court. The El Paso Court entered an order affirming the judgment appealed from, but upon rehearing a disagreement developed between the two active Justices of that Court as to the proper disposition of the cause. As a result, the order of affirmance was set aside and the appeal re-submitted in this Court.

We have the benefit of two opinions, prepared by Chief Justice Price and Associate Justice Sutton of the El Paso Court, in which the contrasting views as to the proper disposition of this appeal are ably set forth. After due consideration we are constrained to hold that the judgment of the trial court should be affirmed for the reasons set forth in the opinion prepared by Associate Justice Sutton.

As the opinions above mentioned are not a part of the record, we here now adopt the following opinion of Mr. Justice Sutton as the opinion of this Court:

This is an appeal from the 65th District Court of El Paso County. Appellants, Elizabeth Wilhelmina Seymour, Magdalena K. Gutting, and James Watts and Wilfred L. Seymour, as Executors of the Estate of David Silvestro Fenchler, sued A. Schwartz in trespass to try title, seeking to recover a parcel of land in the City of El Paso known as the Tri-State Building. The trial was to the court without a jury. The judgment was for the defendant, from which the plaintiffs have perfected this appeal.

The parties will be designated here as in the trial court.

The parties all claim under a common source. As said by plaintiffs in their brief, the question to be determined here is whether or not a certain tax judgment and sale thereunder were sufficient to divest the title out of plaintiffs and vest it in the defendant.

The several assignments of error and the propositions briefed thereunder by the plaintiffs raise in various ways the claimed lack of finality of the tax judgment and invalidity of the sale, and that the court erred in admitting in evidence the tax judgment.

On June 22, 1938, the City of El Paso and the State of Texas recovered judgment against the owners of the tract of land here involved and four other separate tracts for delinquent taxes due thereon and the foreclosure of the tax lien and order of sale. The judgment and order of sale directed that the five separate tracts be separately sold. The plaintiffs claim they were not so sold, but, in violation of the law, judgment and order of sale, they were sold in solido for one bid. The trial court so found. The only evidence introduced on this issue is the Sheriff’s return.A portion of the return applicable here is:

“* * * j sojd above described premises at public auction, as in said writ commanded, and as in said notice advertised (the notice also disclosed the property was directed to be sold in separate parcels), when the same was struck off to the City of El Paso, for its own use and benefit, and for the use and benefit of the State of Texas, at and for the total sum of $15,156.37, the aggregate of the taxes, interest and costs herein — it being the highest secure bidder therefor and that being the highest secure bid for the same.”

Plaintiffs contend this quoted portion of the return clearly shows the property was sold in bulk, contrary to the law, the judgment of the court, and the order of sale. We are unable to agree that such is the proper construction. On the other hand, in the absence of substantial proof to the contrary, we think the language, “as in said writ commanded and as in said notice advertised,” is properly construed to mean what it plainly says, that the property was sold in separate parcels.

The judgment in the original tax proceeding directed a recovery against each separate tract for the taxes, etc., against each separately and apportioned the costs against each tract, one-fifth to each. The typewritten portion of the sheriff’s return recited:

“The City of El Paso recovered judgments in this cause aggregating the total sum, principal and interest of $9996.12. The State of Texas recovered judgments herein aggregating the total sum, principal and interest of $5076.40. Costs in the case amount to a total of $83.85; of which ⅛ or $16.77 is to be charged to each of the five parcels of real estate herein concerned. . ■

“Said property herein described was bought in at Sheriff’s sale for the sum of $15,156.37 — the total amount of the judgments, interest and costs * * *.”

This followed the quoted provision above and further demonstrates, we think, the property was sold in conformity with the judgment and order of sale.

The return in the case of Pitts v. Mills, Tex.Civ.App., 19 S.W.2d 99, affirmed in 121 Tex. 196, 48 S.W.2d 941, 84 A.L.R. 319, relied on strongly by plaintiffs here, is unlike the return here. That return makes unmistakably clear that the sheriff sold the two lots as one piece, as found Iby the court. It is as follows:

“ * * * I offered the within described property for sale, when came the Commonwealth Land & Investment Company and bid Sixty-one and no/100 dollars for the same, and that being the highest and best bid, the within described property was sold to said Commonwealth Land & Investment Company.”

It is recited in the opinion in Fink v. White, Tex.Civ.App., 133 S.W.2d 137, that the return there was the same as in the Mills case, supra, doubtless as the result of the same printed form, each of which was issued out of Harris County.

The motion for a new trial recites and alleges the judgment is in excess of the value of the property. The return recites, and the facts otherwise show, the City bid in the property for the amount of the judgment. Art. 7328, R.C.S., Vernon’s Ann.Civ.St. art. 7328, provides if there be no bids the property shall be bid off to the taxing unit for the amount of the judgment. It is only required to bid the amount of the judgment where there are no other bids. We think it unreasonable to conclude the City would bid the amount of the judgment and in excess of the value of the property when it might bid it in for less than the amount of the judgment, unless it were under the necessity of doing so. The reasonable inference to be drawn from these facts is, there were no bids. In such case, it would be wholly useless for the sheriff to offer the property separately since the taxing unit must bid the amount of the judgment, if it bids. There is a presumption of law that public officials will perform their duties and perform them correctly. In the absence of substantial evidence and proof to the contrary, that presumption will be indulged. We think it applicable here. We cite the following authorities on the presumption generally: 17 Tex. Jur., §§ 75, 76 and 77, pages 276-281, and the cases there cited; R.C.L. Vol. 22, § 68; Anderson v. Polk, 117 Tex. 73, 297 S.W. 219.

In Fink v. White, supra, writ refused, the contention was made that the record was silent as to whether the sale was made in solido or separately and the court must presume the officer did his duty by making the sale in conformity with the order of sale, and the court there said [133 S.W.2d 139] : “The court would, of course, have indulged the presumption in favor of the officer having performed his duty by obeying the court’s order, had not the record in this case presented sufficient evidence to sustain the court’s inference that the sheriff sold the lots in solido contrary to the order of the court, and without authority.”

The other contention that the court erred in admitting in evidence the tax judgment is predicated on the proposition there was a motion for new trial (a bill of review under Art. 2236, now Rule No. 329, Rules of Civil Procedure, pending and undis-posed of in the tax suit at the time this suit was tried, and the tax judgment was not final and sufficient to constitute a link in a chain of title. This, as an abstract proposition, is ordinarily true. It would be good here, except for the provisions of §§ 2 and 3 of Art. 2236, R.C.S., which provide in substance that to stay the execution of the judgment the movant shall give a good and sufficient bond to the plaintiff in double the amount of the judgment or value of the property adjudged, and if the property has been sold prior to the suspension of the judgment the defendants shall not recover the property, but the proceeds of the sale.

We are aware of the case of Houston Oil Co. v. McCarthy, Tex.Com.App., 245 S.W. 651, but this question was not there discussed, nor in any manner alluded to. Furthermore, the inference is justified that that was a suit to recover land and involved no execution thereof. There is no showing in this record that the bond had been given. The familiar and elementary rule, that in trespass to try. title the plaintiff must recover on the strength of his own title and not on the weakness of the defendant’s, is applicable here.

The judgment of the trial court is affirmed.