Rousset v. Settegast

GRAVES, J. Appellant as plaintiff brought this suit against appellee in the court below to set aside a judgment for Certain taxes theretofore rendered in cause No. 36212 by the same court in favor of the state of Texas against appellant, and to cancel and annul a sheriff’s deed issued thereunder, wherein attempt had been made to convey appellant’s property, lot No. 8, in block No. 224, in Houston Heights, Tex., to appellee. It was alleged that the proceedings complained of were void, in that the citation issued in suit No. 36212 was fatally defective, but that a cloud was thereby cast upon plaintiff’s title to the lot, the removal of which was prayed for. The court, sitting without a jury, rendered judgment for the appellee, from which this appeal is presented. We think the court erred. The facts were undisputed, showing that the tax. suit had been brought against appellant in 1905, under allegation that he was a nonresident of Texas, this being the citation issued: “The State of Texas. “In the name of the State of Texas and County of Harris. To the Sheriff or any Constable of Harris County, Greeting:- You are-hereby commanded that you summon, by making publication of this citation in some newspaper published in the county of Harris for eight consecutive weeks previous to the return day hereof, Paul Rousset and the unknown heirs of Paul Rousset, and all persons owning or having or claiming any interest in the following described land, delinquent to the state of Texas and county of Harris for taxes, to-wit: Lot 8 in block 224, in the town of Houston Heights, in Harris county, Texas. On account of taxes due for the years 1897, 1898, 1900, 1901, 1902, and 1903. Which said land is '«delinquent for tax¡es for the following amounts: One and °Vioo dollars ($1.01) for state taxes, and one and n/ioo dollars ($1.77) for county taxes, together with legal interest thereon, and three dollars collector’s costs, three dollars county clerk’s costs,- one dollar and fifty cents for advertising; and you are hereby notified that suit has been brought by the state for the collection of said taxes, which suit is numbered on the docket of the 55th judicial district court of said county No. 36212, and you are hereby commanded to appear and defend such suit at the November term, 1906, of the 55th judicial district court of Harris county and state of Texas, to be begun and holden in the city of Houston, in said county, on the first Monday of November, 1906, it being the 5th day of November, 1906, and show cause why judgment shall not be rendered condemning said land, ordering sale and foreclosure thereof, for said taxes and costs of suit. “Herein fail not, and have you before said court, on the said first day of the next term thereof, this writ, with your return indorsed thereon, showing how you have executed the same.” [1, 2] This writ was evidently framed in. an effort to conform to article 1874, Revised Statutes, relating to citation by publication in suits generally, whereas we think that statute at the time this citation was issued, October 25, 1906, had no application to delinquent tax suits against nonresident owners, but that in such suits the requisites of the necessary citation were then exclusively prescribed by article 7698, Revised Statutes. And if that be true we think, there can be no-doubt that the writ here was fatally defective, since it ran “To the Sheriff or any Constable of Harris County, Greeting”; further reciting that “You are hereby notified that suit has been brought by the state for the collection of said taxes,” and “You are-commanded to' appear and defend said suit,” instead of the owner of the property himself; notifying him that the suit had been brought for collection of taxes, and commanding him to appear and defend it, as required by article 7698. Earnest v. Glaser, 32 Tex. Civ. [221] App. 378, 74 S. W. 605; Garvey ,v. State, 88 S. W. 873; Borden v. Patterson, 51 Tex. Civ. App. 173, 111 S. W. 186; Kenson v. Gage, 34 Tex. Civ. App. 547, 79 S. W. 605; Young v. Jackson, 50 Tex. Civ. App. 351, 110 S. W. 74. It was agreed that at the time the tax suit was filed, as well as when all other proceedings thereunder were taken, Rous-set was and still is a nonresident of Texas, living in New Orleans, La. In these circumstances, that article 7698 alone applied in a suit to collect delinquent taxes against a known owner, alleged to be a nonresident, is not, we think, an open question. That article embodied what was known as the Colquitt Act, passed in 1897 (General Laws 1897, p. 138, c. 103). Being a special act upon the single subject of taxation, and having for its purpose the collection of taxes against both nonresident and unknown owners, by its express terms it repealed all former laws in so far as they conflicted with its provisions. Now, as the Supreme Court pointed out in Dunn v. Taylor, 42 Tex. Civ. App. 241, 94 S. W. 350, there had before its enactment been no provision at all for citing an unknown person in any casé, and this act was intended to remedy that condition by providing that such could he done by publication. The statute did not stop, however, with directing that 'Unknown owners should be cited according to its detailed requirements, but specifically included also all nonresident owners, without confining it to such of the latter class as were unknown; thereby directly trenching in that respect upon the provisions of pre-existing article 1874, which commanded citations in suits against nonresidents generally to be addressed to the sheriff or constable of the county where instituted. Under such condition, the later and special act would prevail, and it is no answer to say, as the appelleé here does, that to tax suits against a known owner the old statute would still apply. [3] Neither can the fact that the suit was against Paul Rousset and his unknown' heirs make any difference, or bring it within article 1874 and the succeeding one, 1875, because the petition specifically recited that the suit was brought in pursuance of the act of the 24th Legislature (chapter 42), relating to the collection of delinquent taxes. Gammel's Laws, vol. 10, p. 1886 et seq.; Babcock v. Wolffarth, 35 Tex. Civ. App. 512, 80 S. W. 642; Cyc. vol. 36, p. 1151; Kenson v. Gage, 34 Tex. Civ. App. 547, 79 S. W. 606. It follows from what has been said that the tax judgment assailed was void for want of a sufficient citation upon which to rest, and hence could not become the source of a title in appellee to appellant’s land. Accordingly, since the facts were all fully developed, the trial court’s judgment will be reversed, and judgment will be here rendered for appellant canceling and nullifying the sheriff’s deed to appellee, and removing the cloud thereby cast upon the title to the lot involved. Reversed and rendered. Footnotes [1] dS=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [or] other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes