68 Tex. 10 | Tex. | 1887
This suit was instituted by appel
The ruling of the court upon the exceptions to the answer and its judgment awarding a recovery in money against defendant, are assigned as error.
Among other propositions submitted in the brief of counsel for appellees, it is contended that the tax assessed to pay the bonded indebtedness of the city was not payable in the coupons in any event. But in the view we take of the case it is not necessary to decide this question.
Section 6 of article 11 of the Constitution of 1876 provides that taxes levied by a municipal corporation to pay an indebtedness theretofore existing “may be paid in the coupons, bonds, or other indebtedness, for the payment of which such tax may have been levied.” It may be that this provision is applicable to the taxes in controversy in this case, and yet (as we think) the judgment of the court below be correct. Admit that the special tax was payable in the coupons, still the question presents itself, did appellant’s right to pay in these securities continue after he had made default, and after suit had been brought against him?
We have been cited to no authorities upon this point, and have not been able to find any decision bearing directly upon it. But if we may apply to the case of taxes due to a municipal corpora
In our own State it is well settled that a promise to pay a sum of money which may be discharged in something else, as for example in “ cash notes,” can not be paid in the cash notes after the day upon which the obligation matures. (Baker v. Todd, 6 Texas, 273; Blount v. Ralston, 20 Texas, 132; Smith v. Folwell, 21 Texas, 466; Short v. Abernathy, 42 Texas, 94.) In Baker v. Todd, supra, Judge Lipscomb says: “The money in such cases is the primary element of the promise, and the stipulation that it may be discharged by something else is an alternative that the maker may avail himself of, at or before the day of payment; if he fails to do so, the primary object of the promise must prevail, and it becomes a moneyed demand.” (See also Powe v. Powe, 42 Alabama, 113.) By the levy and assessment of the taxes in question, appellant became liable to pay the city of Houston a certain sum of money—not to pay the amount specified in the coupons of its bonds. By the provision of the Constitution quoted (admitting that it applies to this tax), he had the privilege of discharging the obligation in the matured indebtedness which the tax was levied to pay. How what greater right has he than a promisor who is under a similar obligation and has a like privilege? If appellant could tender the coupons and discharge his debt after suit brought, it would seem that he could demand that judgment should be rendered against him for the coupons, or at least only for the actual value, of a sufficient number of them, taken at par value, to cover the amount of the tax. Such a construction would result most disastrously to the interest of every city in the State that happened to be burdened with debt at the adoption of the Constitution; and we do not thipk that any such consequence was ever intended by the framers of our fundamental law. We are of opinion that the object of the provision was to permit the special tax to be paid for in the indebtedness it was intended to discharge, only in case this was done before the tax payer had made default.
The appellant not having tendered the coupons until suit had been brought against him, his taxes became an obligation to pay-money, without any alternative privilege, and hence the court did not err in sustaining the exceptions to his plea of tender and in rendering judgment against him for the amount claimed in the petition. The judgment is affirmed.
Affirmed.
Chief Justice Willie did not sit in this case.