Opinion
No. 4264.
December 1, 1932. Rehearing Denied December 8, 1932.
Appeal from District Court, Upshur County; Walter G. Russell, Judge.
Suit by Anna J. Buckholts and others against Henry Alsup and others. Judgment for defendants, and plaintiffs appeal.
Reversed and rendered.
The appellants, Anna J. Buckholts, W. E. Buckholts, A. L. Buckholts, and Donald Ernest Cooksey, by A. L. Buckholts as next friend, brought this suit against Henry Alsup and the unknown heirs, successors, and legal representatives of Henry Alsup, and Mrs. Henry Alsup and her unknown heirs, successors, and legal representatives, and a number of other persons named. The suit was in the form of trespass to try title and for possession of a tract of land in Upshur county, and to cancel certain conveyances and tax deed and oil and gas leases as casting cloud on plaintiffs' title. Plaintiff's further asked the right of redemption from the tax sale pleaded. The petition fully sets out the particulars of the plaintiffs' controversy.
The case was heard by the court without the aid of a jury, and the judgment was rendered for the defendants. Plaintiffs have timely prosecuted an appeal from the judgment. The court made the following findings of fact and conclusions of law:
"1. Prior to 1870 Henry Alsup and his wife, Mrs. Henry Alsup, were the owners of the land described in plaintiffs' petition.
"2. Prior to 1870 Henry Alsup and his wife lived upon the land in question and had placed certain improvements thereon.
"3. Before 1870 Henry Alsup and wife removed from the land and premises in question and the same was occupied by one Christina.
"4. In January 1873, W. L. Buckholts and his wife, Anna J. Buckholts, under claim of exclusive ownership, took possession of the land and premises aforesaid and under said claim of exclusive ownership continuously thereafter until December, 1899, had and held peaceable and adverse possession thereof, cultivating, using and enjoying the same, and during which time they had such land and tenements actually enclosed.
"5. In December, 1899, W. L. Buckholts and Anna J. Buckholts moved off the land and premises in controversy and the same was occupied by their tenant during the year 1890. And in 1892, W. L. Buckholts and wife, Anna J. Buckholts, moved from this State to Oklahoma where they continuously resided, together with the other plaintiffs in this suit.
"6. W. L. Buckholts died in Stephens County, Oklahoma on August 2, 1929, and left surviving him Anna J. Buckholts, his wife, W. E. Buckholts and A. L. Buckholts, his sons, and Donald Ernest Cooksey, a minor grandchild of Lena J. Cooksey, a daughter of said W. L. Buckholts and wife, which daughter died January 1, 1898. That there were no other children or descendant of any deceased child of the said W. L. Buckholts; that the said W. L. Buckholts left no debts except those of his last illness which have been paid, and there is no administration of his estate pending in Texas, nor is there necessity therefor.
"7. W. L. Buckholts rendered and paid the taxes accruing on this land from 1872 until 1890 with the exceptions of the years _______ and _______ and as to the said last named years, there is no evidence as to whether the same were paid or not.
"8. Since 1890 the land and premises described in plaintiffs' petition have not been actually occupied by any person, but from 1891 to 1908, both inclusive, were rendered against the `unknown owners'; for the years 1909 and 1910, in the name of A. N. Graves, one of the heirs of Henry Alsup, deceased; for the years from 1911 to 1929, both inclusive, against `unknown owners'; and for the year 1930 by R. C. Barnwell and C. H. Roberts, purchasers under the tax sale; taxes being paid by A. N. Graves for the years 1904 to 1908; and 1911 to 1919, both inclusive.
"9, That the abstracts in the Assessor's office of Upshur County, Texas, were destroyed by fire in 1888, the first record of such abstracts subsequent to the fire being 1889, from which records it appears that W. L. Buckholts rendered said land for taxation in 1889 and 1890 and it appears from said abstracts in the Assessor's office that the said W. L. Buckholts has not rendered said property for taxation since that date.
"10. Prior to April 9, 1929, suit was instituted in the District Court of Upshur County, Texas, by the State of Texas to recover delinquent taxes on the land described in plaintiffs' petition and for foreclosure of the tax liens thereon against unknown heirs of H. Alsup and all persons owning, having or claiming any interest in said lands.
"11a. That the County Attorneys, before filing the tax proceedings, exercised due diligence to ascertain the owners of the property, and being unable to determine the owners and their residences, duly filed an affidavit for publication, as required by the Statutes and citation was duly issued and served by publication directed to the `unknown heirs' of H. Alsup and all persons, owning, having or claiming any interest in said lands, as required by law. That all the plaintiffs in the present suit were non-residents at the time of the tax suit and proceedings and are still non-residents of the State of Texas.
"11b. That Judge W. R. Stephens of Upshur County, Texas, was appointed as attorney for unknown defendants cited by publication and filed an answer in said cause and agreed to the statement of facts which was deposited with the papers in the tax suit.
"12. That on April 9, 1929, after due service had been had by publication, as required by law, judgment was rendered in said tax suit in favor of the plaintiffs, such delinquent taxes in the amount of Two Hundred Sixty Nine Dollars and Twenty Six cents ($269.26) and establishing same as a lien on said lands and foreclosure of the tax lien on the properties described in plaintiffs' petition. That said judgment was sufficient to and did foreclose the tax lien as to all parties to such suit.
"13. That an order of sale was duly and legally issued out of said court in said cause directing the sheriff of Upshur County, Texas, to sell said lands and premises as in the judgment provided. That notice of sale was duly issued and fixed July 2, 1929, as the date of sale and was duly served and published, as required by law.
"14. That on July 2, 1929, the lands and premises were sold by the sheriff of Upshur County, Texas, and the defendants, R. C. Barnwell and C. H. Roberts, of Upshur County became the purchasers for Two Hundred and Ninety Six Dollars and sixty-seven cents ($296.67), and due return was made by the sheriff of Upshur County.
"15. That the sheriff's deed was of date July 10, 1929, conveying the property to R. C. Barnwell and C. H. Roberts, the purchasers of said land.
"16. That the records of the Tax Collector of Upshur County show that on July 17, 1929, R. C. Barnwell and C. H. Roberts paid to such Tax Collector the amount of their bid for said property and the payment was endorsed on the delinquent tax records of Upshur County, Texas.
"17. That the deed from the sheriff of Upshur County to the purchasers was recorded in the Deed Records of Upshur County, July 19, 1929.
"18. That upon the tender and payment to them of the money hereinafter set out, R. C. Barnwell and C. H. Roberts executed and delivered to certain heirs of H. Alsup, deceased, quit claim deeds conveying to them the lands and premises described in plaintiffs' petition and purchased under the tax proceedings. (Here follows names of persons, amount of consideration paid, date of deeds, and date of recording deeds).
"The said R. C. Barnwell and C. H. Roberts conveyed all their right, title and interest in and to the lands and premises involved in this suit, acquired by virtue of the tax proceedings thereunder to the respective grantees named in the quit claim deeds aforesaid, who are defendants in this suit.
"19. On July 3, 1931, the plaintiffs, claiming to be owners of the land involved in this suit, tendered to C. H. Roberts and R. C. Barnwell, the purchasers at the tax sale referred to, an amount of money sufficient to redeem said property from tax sale, and requested a release thereof, which tender was refused by said C. H. Roberts and R. C. Barnwell.
"20. The several assignees from C. H. Roberts and R. C. Barnwell referred to in my foregoing findings as grantees in deeds from C. H. Roberts and R. C. Barnwell were on July 3, 1931, non-residents of Upshur County, and could not be found in that County on said date.
"21. On July 3, 1931, after the tender by plaintiffs to said defendants, C. H. Roberts and R. C. Barnwell, and the refusal on the part of such purchasers to accept such tender, plaintiffs, claiming to be owners of said land, tendered such necessary amount of money to redeem said land from the tax sale aforesaid, to the Tax Collector of Upshur County, Texas, which tender was by said Tax Collector refused and upon request of plaintiffs of said Tax Collector to furnish plaintiffs with a receipt therefor or a certificate of such tender, such Tax Collector declined and failed to execute such receipt or certificate.
"22. Henry Alsup died in Texas in 1885 and his wife, Mrs. Henry Alsup, died in Texas in 1886, neither having executed a will and there having been no administration of their estate and that the defendants herein with the exception of the defendants, R. C. Barnwell, C. H. Roberts, D. E. Pruitt, D. S. Kirk and J. C. Reese (and the husbands of certain defendants joined pro forma as shown by their answers) comprise the sole and only heirs of Henry Alsup and Mrs. Henry Alsup."
Conclusions of Law."From the facts I conclude that plaintiffs are not entitled to recover the lands in controversy."
The court made the additional findings of fact:
"1st. On July 2d 1929, W. L. Buckholts and Anna J. Buckholts, one of the plaintiffs herein, were the sole owners in fee simple of the land and premises described in plaintiffs' petition, in the proportion of an undivided one half each, subject to the proceedings had in the tax suit referred to in my original findings of fact.
"2nd. On August 2d 1929, W. L. Buckholts died and his undivided one half of the property described in plaintiffs' petition passed to and vested in plaintiffs, W. L. Buckholts, A. L. Buckholts and Donald Ernest Cooksey, in equal proportions.
"3rd. On July 3rd, 1931, at the time of the tender by plaintiffs to defendants, C. H. Roberts and R. C. Barnwell, of the money to redeem said land from the tax sale referred to in my original findings of fact, each and all of the remaining defendants in said suit were non-residents of Upshur County and could not be found in that County on said date.
"4th. Neither Henry Alsup nor his wife, Mrs. Henry Alsup, nor any of their heirs, nor any of the defendants herein have been in possession of the land and premises described in plaintiffs' petition subsequent to 1870."
Additional Conclusions of Law."1st. At the time of the institution of the suit in the District Court of Upshur County by the State of Texas to recover delinquent taxes on the land described in plaintiffs' petition and for foreclosure of the tax liens thereon, referred to under paragraph 10 of the court's original findings of fact and continuously thereafter until the final judgment was rendered therein, W. L. Buckholts and wife, Anna J. Buckholts, were the sole owners in fee simple of such land subject only to valid tax liens thereon.
"2nd. On July 2d 1931, plaintiffs, Anna J. Buckholts, W. E. Buckholts and Donald Ernest Cooksey were the sole owners of the right to redeem the land involved in this suit from the sale made under judgment foreclosing tax lien thereupon referred to in my original findings of fact.
"3rd. The plaintiffs, as owners of the land in question, were entitled to redeem the land from the foreclosure sale for taxes referred to in the court's original findings of fact, at any time within two years from the date of such sale."
It is concluded that the court's findings of fact have support in the evidence, and they are sustained and here adopted.
R. E. Bowling, of Pauls Valley, Okla., and B. W. Patterson, of Eastland, for appellants.
M. G. Mell, of Gilmer, W. R. Abernathy, of McKinney, M. S. Church, and Prentice Wilson, both of Dallas, J. F. O'Brian, of Gilmer, and H. Tom Kight, of Claremore, Okla., for appellees.
The chief points presented for decision are that (1) the tax sale did not divest appellants of the title to their lands, but as to them was absolutely void, because the proceedings were against the unknown heirs of H. Alsup and did not include any other parties, either known or unknown, and because there were certain irregularities which were enumerated; and (2) in the facts proven the appellants made proper and timely tender of the required amount of money, and they were legally entitled to redeem the land from the tax sale. As the conclusion reached upon the second point accomplishes an object of the suit and is conclusive of the appeal, a ruling upon the first point is entirely foregone as unnecessary, although presenting a serious question as to the validity of the tax judgment and the sale thereunder.
By the findings of the court the plaintiffs, who are appellants here, were the owners of the land in fee simple when the tax suit was instituted, and were only divested of their title by reason of the tax suit and sale for delinquency in making payment. That the plaintiffs were entitled to redeem the land from the foreclosure sale for taxes. That on July 3, 1931, the plaintiffs made proper tender to the private purchasers of the land at the tax sale of "an amount of money sufficient to redeem said property from tax sale." The further findings pertinent to state were made:
"14. That on July 2, 1929, the lands and premises were sold by the Sheriff of Upshur County, Texas, and the defendants, R. C. Barnwell and C. H. Roberts, of Upshur County became the purchasers for Two Hundred and Ninety Six Dollars and sixty seven cents ($296.67), and due return was made by the sheriff of Upshur County.
"15. That the sheriff's deed was of date July 10, 1929, conveying the property to R. C. Barnwell and C. H. Roberts, the purchasers of said land."
There was evidence going to show and the court made the finding that the record of the tax collector of Upshur county has the entry that "on July 17, 1929, R. C. Barnwell and C. H. Roberts paid to such Tax Collector the amount of their bid for said property and the payment was endorsed on the delinquent tax records of Upshur County, Texas."
The controlling question, therefore, in this case is, When land is sold under judgment of court for state and county taxes to private purchasers, has the owner of such land, or any one having an interest therein, two years within which to redeem the same from the day the property was actually bid off by the purchaser, or should this time be computed from the time the bidder at such sale pays the amount of money? The statutes bearing upon the point involved and the requirements thereof are as here stated. By article 7328 (as amended by Acts 1927, 1st Called Sess., c. 99, § 1 [Vernon's Ann.Civ.St. art. 7328]) it is provided that after a judgment is rendered foreclosing a tax lien for delinquency in payment of past due and unpaid taxes "an order of sale shall issue and the land sold thereunder as in other cases of foreclosure," and on the day appointed by the statute, "the sheriff shall sell the same at public outcry to the highest bidder for cash." Article 7330 (under Acts of 1897) provides: "In all cases in which lands have been sold, or may be sold, for default in the payment of taxes, the sheriff selling the same, or any of his successors in office, shall make a deed or deeds to the purchaser or to any other person to whom the purchaser may direct the deed to be made," etc. But article 7328, supra (enacted in 1923), although bearing upon another situation, has the following wording: "The sheriff, in behalf of the State, shall execute a deed conveying title to said property when sold and paid for." Article 7284b, Vernon's Ann.Civ.St., declares that: "Whenever land is sold under a decree and judgment of court for taxes levied by or for the State, or by or for any County within the State, the owner of such property, or any one having an interest therein, shall have the right to redeem the same at any time within two years from the date of such sale upon payment of double the amount paid by the purchaser at such sale; provided that the purchaser at such foreclosure sale, and his assigns, shall not be entitled to the possession of the property sold for taxes until the expiration of two years from the date of such sale."
As may be seen from the statute, the limitation upon the right of the owner to redeem is made to begin "from the date of such sale." The inquiry then is, What is meant by the words "from the date of such sale," as used in the statute? They either mean the date of the auction when the property was knocked down to the highest bidder, or they mean the time of the executed sale when the bid was complied with by the purchaser and he had the right to have the legal title conveyed to him. The intention must govern. The tax foreclosure requires and includes not only an auction and a highest bidder, but also a compliance with the terms of the offer or bid. It is quite manifest that the purchaser acquires no title to the property simply and solely by virtue of the fact that it was knocked off to him as the highest bidder at the sale. For if he refuses to pay the money at once upon request, the sheriff has the option and can resell the property under the same process. The very purpose of having the auction is the collection of the tax, and that purpose is not accomplished until there is payment in money of the offer or bid. And it is only on the actual payment in money of the bid by the purchaser that all authority of the sheriff to proceed further against the property will be at an end. Carter v. Munzesheimer (Tex.Civ.App.) 272 S.W. 277. The bidder is not entitled to his deed from the sheriff until he tenders and pays the amount of his bid, and until this is done he has no interest in the property. 24 Cyc. p. 49. The statute seems to imply that the deed to the property sold shall not be executed by the sheriff until paid for by the bidder. It is believed by proper construction there is no "sale" until the date the bidder at such sale has paid in cash the amount of his bid. By express provision of section 13 of article 8 of the Constitution of the state as relates to the summary remedy of tax sales, the limitation upon the right of the owner to redeem is made to begin "from date of purchaser's deed." It is thought to be only reasonable that the Legislature, in making provision for tax proceedings by judgment of the court, intended and meant the same executed sale as the "sale" required to be made.
In this case it seems that the sheriff made official return touching the sale of the property on July 2d, with entry of the fact that the property was sold to the purchasers named. But it further appears that the deed to the purchasers was not executed and acceptance of the money had until July 10th. Ordinarily the acceptance of the money and the execution of the deed would have the effect of ratifying all that had been previously done, and relate back and make a sale effectual. But relatively to the right of the owner to redeem the land the "sale," in view of the purpose and intent of the statute, may not be considered as complete until actual payment of the amount bid by the bidder. Manifestly the statute did not intend that the limitation to the right to redeem should begin to run before the date the purchaser himself had actually paid out any money for the property. The purchaser acquires no title until he pays the amount of his bid. According to the recognized rule, the statutes which give the right to redeem are to be regarded favorably and construed with liberality. 2 Cooley on Taxation (3d Ed.) p. 1025; Black on Tax Titles, § 350. It is believed the construction above given to the statute is supported by similar cases. Houston, E. W. T. Ry. Co. v. Keller, 90 Tex. 214, 37 S.W. 1062; Wood v. Henry, 107 Ga. 389, 33 S.E. 410.
The proof showing the owners did all that was required to redeem the land, that fact required judgment in favor of appellants in the cancellation of the tax deed, and judgment for the purchasers for the amount of the tendered money. McGraw v. Potts (Tex.Civ.App.) 27 S.W.2d 550.
The judgment is reversed, and accordingly here rendered. The appellees to pay costs of this appeal and of the trial court.