Pfeuffer v. Bondies

REESE, Associate Justice. This was a suit in trespass to try title, brought by Harry R. Bondies and others against Geo. Pfeuffer and others to recover a tract of 320 acres of land. Upon trial before the- court without a jury judgment was rendered for plaintiff, Turner, who, having bought out all the other plaintiffs after suit brought, pleaded such purchase, and defendants have appealed. The tract of land, described as the J. M. Meador survey in Gregg County, was patented to the heirs of W. M. Simpson, deceased, by virtue of an unconditional certificate issued to Judson M. Meador. The patent recites that the certificate was issued to said Meador on September 3, 1848, and it is recited in the patent that the certificate was transferred to Allen October 16, 1854, by Allen to Erazer on December 17, 1854, and by Erazer to Wm. M Simpson, deceased, on the same day. The certificate, by virtue of this last transfer, became the community property of Wm. M. Simpson and his wife, Letitia Simpson, to whom he was married in 1843. W. M. Simpson died in 1855, leaving a widow, the said Letitia, and no children. Both by the terms of his will and as sole heir of the community property, the certificate in question passed to the widow, Letitia, from whom it passed by her will to her son, T. R. Buford, and her daughter, Catherine Bondies, and her children. The original plaintiffs are sole heirs-at-law of Catherine E. Bondies, and conveyed the land to G. B. Turner, who came in as party plaintiff and recovered judgment. The heirs-at-law of T. R. Buford are made defendants to the suit, some of whom disclaimed, and others not disclaiming made default. Judgment was rendered against them by default and upon disclaimer. Ho complaint is made of the judgment on this account. The defendants, Pfeuffer and Buenz, claim title under a tax deed. Appellants contend that, notwithstanding the court found that W. M. Simpson died in 1855, the recitals' in the patent that the Meador certificate was conveyed in 1854 by Frazer to W. M. Simpson, deceased, show that Simpson was dead at the time of such transfer, and that such transfer was on this account void, and no title passed to his heirs by the patent. Ho such effect can be given to this recital. The patent was issued in 1863 to the heirs of W. M. Simpson, and the only inference to be drawn from the recital in the patent, that the certificate had been transferred in 1854 to W. M. Simpson, deceased, is that Simpson was deceased at the "date of the patent. The same statement occurs in appellee’s petition, in referring to the patent as descriptive of the land sued for, and appellants’ objections thereto are equally without force. This objection is presented in various forms under several assignments of error, all of which are overruled. W. M. Simpson is shown to have *55 been alive at the date of the transfer of the certificate to him by positive and undisputed evidence. The naked recital in the patent does not tend to show otherwise. The evidence sufficiently shows appellee’s right to recover, against appellants unless the title was divested out of them by the tax sale and deed under which appellants claim. The original grantee of the land was Judson M. Meador. The abstract number was 151. The tract contained 320 acres, and it was the only Meador survey in the county. It was sold in 1881 for the delinquent taxes of 1880 to the parties under whom appellants claim. The land was assessed as the property of “unknown owners,” and in making the assessment it was described by the assessor as “Abstract No. 151, Certificate No. 95, Headright survey, Joseph M. Meador, number of acres, 320.” -No survey number was given. In advertising the property as delinquent it was described as abstract number 157. Original grantee, Joseph W. Meador. In the tax ' collector’s deed the land is described as the Joseph W. Meador survey, abstract number 157, certificate number 95, in Gregg County. It is settled law that, in order to divest the title of the owner by a sale for taxes, such as the one here relied upon, it must be affirmatively shown that all of the requirements of law were complied with in making such sale. It is only by a strict compliance with such requirements that the authority to make the sale is given. As a first step there must be a valid assessment, as shown by the tax rolls. The listing of the property on the tax rolls as the Joseph M. Meador survey, and the omission to give the survey number, were fatal to the assessment so far as it could affect, this survey, which was the Judson M. Meador survey. (Rev. Stats., art. 5119; Williams v. Thomas, 44 S. W. Rep., 1073; Meredith v. Coker, 65 Texas, 30; Gulf, C. & S. F. Ry. Co. v. Poindexter, 7 S. W. Rep., 316.) The advertisement of the property described it as the Joseph W. Meador survey, abstract number 157, and the tax collector’s deed described it in the same way. This misdescription as to the name of the original grantee was not helped by the finding of the trial court that there was no other Meador survey in Gregg County. Neither the assessment, advertisement nor sheriff’s deed described this tract of land as required by law, and the tax deed was insufficient to convey title to those under whom appellants claim. We find no error in the record requiring a reversal of. the judgment of the trial court, and it is affirmed. Affirmed.