Starnes v. Bledsoe Independent School Dist.

MARTIN, Justice. Appellee, Bledsoe Independent School District, recovered a personal judgment against appellant, Bert Chitwbod, in the sum of $4785.76 for taxes, penalty and interest assessed against 32 sections of land located in Bledsoe Independent. School District. No personal -judgment was rendered against appellant, C. R. Starnes, but the trial court decreed a foreclosure of the tax lien on the lands in issue as against both appellants. Appellants perfected an appeal from the above described judgment and their sole point of error asserts that the taxes were uncollectible because the tax assessments were made in, thq name of C. R. Starnes as owner, when in fact C. R. Starnes was not the full oyvner of record, or otherwise, of the .lands covered by the assessments during the tax years in issue. From the record, it appears that appellant, C. R. Starnes, as well as Calvin R. Starnes, Jr., W. F. Starnes and W. F. Starnes, Trustee, were the joint owners of the lands at issue in the tax suit at the time such taxes were assessed. These parties conveyed to appellant Chitwood all the surface estate of the lands described in the tax suit. Under this conveyance executed and delivered March 29, 1950, appellant Chitwood became the sole owner of the surface estate in the land and rendered the [837] same for taxation and paid the taxes due thereon for the years 1950 and 1951. Although the tax rate had increased from $1.10 to $1.30 in 1950, it is noteworthy that appellant Chitwood did not request that a lower valuation be placed on the land. Art. 7171, Vernon’s Annotated Texas Civil Statutes, is as follows: “All real property subject to taxation shall be assessed to the owners thereof in the manner herein provided; but no assessment of real property shall be considered illegal by reason of the same not being listed or assessed in the name of the owner or owners thereof.” Under this statute, the Supreme Court of Texas in Victory v. State, 138 Tex. 285, 158 S.W.2d 760, syl. 4, 5, 6 & 7, ruled that the erroneous listing of property in the name of only one of several owners did not invalidate the assessment. This'decision sustaining the provisions of the above statute requires that appellants’ sole point of error be overruled. Victory v. State, supra; Denman v. State, Tex.Civ.App., 85 S.W.2d 252, Syl. 1 & 2; Baldwin v. State, Tex.Civ.App., 95 S.W.2d 1354, Syl. 2. The basic principle as defined in Bashara v. Saratoga Independent School District, 139 Tex. 532, 163 S.W.2d 631, 633, relied on by appellants herein, is distinguishable from the rule decreed in Victory v. State, supra, which governs the sole issue in the cause here on appeal. A personal judgment was taken against Bashara for the taxes on the entire tract of land of which he was only part owner. Furthermore, at the time of the filing of the suit, Bashara was still the owner of the tract of land subject to the assessment and a party at interest in the suit and directly affected by any judgment rendered in the cause. In the case here at issue, appellant, C. R. Starnes, and the other joint owners conveyed all their surface interest in the land to appellant Chitwood prior to the filing of plaintiff’s first amended original petition and no personal judgment for the taxes due was taken against Starnes or any of the former owners of the land. Bashara v. Saratoga Independent School District, supra, further rules as follows: “* * * one buying property against which taxes are delinquent does not become personally liable- therefor in the absence of express assumption. City of San Antonio v. Toepperwein, 104 Tex. 43, 133 S.W. 416. And see Smithey v. Shambaugh, 126 Tex. 396, 88 S.W.2d 475.” Since appellant Chitwood did not assume the taxes as sued for. in this cause, the judgment of the trial court is in error in adjudging him to be personally liable for such taxes. The judgment of the trial ..court is so reformed as to decree that Chit-wood is not personally liable for the taxes in issue. Further, since the findings of fact disclose that the taxes as sued for are based only on the surface valuation of the lands as owned by- Chitwood, the judgment of . the trial court is so reformed as to grant a foreclosure of the tax lien only, on the surface estate in the lands. Appellants’ point of error is overruled. The judgment of the trial court is reformed as hereinabove outlined. -and the judgment as so reformed is affirmed.