115 S.W.2d 1036 | Tex. App. | 1938
On trial of this case to the court without a jury — an action by appellee, French Independent School District, against appellant, C. W. Howth, for taxes and to foreclose a tax lien — appellee was awarded judgment against appellant for $694.49, with foreclosure of lien. The land involved was a tract of 22.3 acres, purchased by appellant in 1922 for $2,230, and a second tract of 2 acres and a third tract of 7 acres, purchased by him in 1923 for $2,700. All of the land was on the A. Williams league in Jefferson county. The taxes sued for were for the years 1924-1934, not including 1927.
By way of answer appellant pleaded that the assessments against his property were illegal, wrongful, arbitrary, and confiscatory. The pleadings of the parties are sufficient to support all propositions and counter propositions advanced on this appeal.
It is conceded that appellee is a municipal corporation, with power to levy and assess taxes for the support of its schools; that the tax rate for the years in controversy was $1 on the $100 valuation; that, during these years, appellee had a duly qualified tax assessor and tax collector; and that, on the face of the record, the levy and assessment of the taxes in controversy were regular, and that the interest and penalty were regularly assessed and taxed.
The trial court found the following facts which have support in the evidence: (1) In buying the land, appellant had no personal knowledge of its value and had never seen it; he relied upon reports made to him by other parties. The tract of 22.3 acres was in a swamp, subject to overflow; it is not improved, and, from its nature and location, can never be improved. The two tracts of 9 acres have never been improved, and, except for two small portions, cannot be improved. When purchased by appellant, the 22.3 acres was not worth more than $10 per acre and its value has never exceeded that sum. When appellant bought the 9 acres, its value was not more than $25 per acre, and it has never been worth more than that sum. (2) Soon after buying this land, appellant donated 1 acre, on a slight elevation, out of the tract of 22.3 acres to appellee for school purposes. Appellee built its schoolhouse on this land, but could not use it because the land and the house were subject to overflow; subsequently, appellant gave to appellee 1 acre out of the 9 acres, and the schoolhouse was moved to that tract. (3) Appellant did not render his land for taxes for the years 1924-1925, and 1928-1934; for these years it was valued by the tax assessor as follows: for the year 1924, $660; for the year 1925, $2,900; for the years 1927-1934, *1038 $5,250. For the year 1927, appellant rendered the property at $2,000. In 1926, he signed a rendition sheet, reciting the value at $2,900 as fixed by the tax collector, but, as found by the court, "without paying any attention whatever to the value fixed thereon by the tax collector." (4) In assessing the land appellee relied upon the recitations of value in appellant's deeds, and did not go upon the land to have it inspected and valued. The court found that appellee's tax assessor "submitted his said raises in valuation to the duly authorized, constituted equalization board of said District; that neither said tax collector nor said board of equalization equalized the improved lands in three classes lying within the taxing area so as to embrace in the first class the better quality of land and improvements, and in the second class to embrace the second quality of land and improvements, and in the third class to embrace lands but of small value with inferior improvements, and they did not assess the land as nearly uniform as possible in accordance with subdivision 3 of article 7206 of Vernon's Texas Civil Statutes of 1936, but arrived at the value without having inspected the land and in disregard of the fact that same was swamp land and incapable of producing revenue, and assessed same on the basis of the purchase price thereof paid by the owner of said land; that said C. W. Howth never at any time appeared before the board of equalization and protested as to the value placed upon said land. The court does not determine whether the said defendant did or did not have notice of such increase in values but the assessor testified and the court finds as a fact that he customarily mailed notices of such increases to all owners of property." (5) Other tracts of land adjacent to appellee's land, quoting the court's findings, "of the same kind, quality, character and value," as appellee's tract of 22.3 acres were assessed by appellee on the valuation of only $50 per acre, while appellee's land was assessed, quoting the court's finding, "at a valuation of approximately $170.00 per acre." As to the 9 acres, adjacent land was assessed at "from $100.00 to $200.00 per acre," but the adjacent land was improved, on paved highways, and consequently of high commercial value; the assessment against this land was in reasonable proportion to its value; appellant's land was not improved, was not adjacent to paved highways, and had a value of not more than $25 per acre.
Notwithstanding the provisions of this article, the defendant in a tax suit may plead in defense that the assessment against his property was illegal, wrongful, arbitrary, and confiscatory. 40 Tex.Jur. § 182; Town of Pleasanton v. Vance, Tex.Com.App., 277 S.W. 89; Stevens v. City of El Paso, Tex.Civ.App.
The taxpayer, as appellant did in this case, may offer his defenses in an action by the state or a municipality; he does not have to bring a suit to enjoin the illegal tax. Mann v. State,
The facts found by the court compel the conclusion that the assessments against appellant's property are void for the following reasons: (a) The plan adopted by the board in fixing values — it based its decision upon the values recited in appellant's deeds — was arbitrary and in violation of law. Rowland v. City of Tyler, Tex.Com.App., 5 S.W.2d 756; Texas P. Ry. Co. v. City of El Paso,
In Johnson v. Holland,
From what we have said, it follows that the assessments against appellant's property were in violation of the Constitution and void.
But the trial court also concluded, in his conclusions of law, that appellant "is now estopped to claim that said land has been excessively valued," for two reasons: (a) "By reason of his payment of the taxes on said land for the year 1927 upon the valuation of $5,250.00 without protest"; and (b) he failed to appear before the Equalization Board to "make protest of the valuations placed on said land for said years after he had been notified of the valuations." The first ground could not support the conclusion of estoppel against the taxes for the years prior to 1927. In view of appellant's testimony — he said he paid the 1927 taxes without investigation, on presentation of the matter to him by the tax collector — the first ground should have but little weight against the taxes subsequent to 1927.
On the second ground, in his conclusions of fact, the court refused to find that appellant had been notified of the valuations. Where a conflict occurs between the facts found in the conclusions of fact and the facts found in the conclusions of law, the conclusions of fact should control; this because article 2208 provides that the judge shall "state in writing the conclusions of fact found by him separately from the conclusions of law." The facts found by the trial court, as a proposition of fundamental error, are insufficient to support the conclusion of estoppel.
The judgment of the lower court is reversed and the cause remanded for a new trial.
Reversed and remanded.