42 S.W.2d 867 | Tex. App. | 1931
This suit was instituted by the plaintiff, Ellis County Levee Improvement District No. 9, on the relation of the Brown-Crummer Investment Company, a corporation, under article 8017 of the Revised Statutes, to recover delinquent taxes alleged to be due on certain land embraced within said levee district, for the years 1919 to 1926, inclusive. A trial was had before the court without a jury, and resulted in a judgment in favor of the plaintiff for the taxes for the years 1925 and 1926, amounting to the sum of $4,454.30, and for foreclosure of plaintiff's lien on the property. The defendants have brought the case to this court on writ of error.
This court heretofore certified to the Supreme Court certain questions involved in this appeal, and same were answered by that court in
The plaintiffs in error, by an appropriate proposition but without proper assignment of error in the lower court, now insist that the trial court committed fundamental error in foreclosing the tax lien against two separate tracts of land for the gross amount of taxes due on all of said land. The plaintiff sued to foreclose a lien on 177.3 acres of land out of the Robert Ray and G. B. McKinstry surveys, and described the land by field notes as one tract. However, the plaintiff alleged that the land was assessed as two tracts, one consisting of 110 acres out of the McKinstry survey valued at $2,750, and the other consisting of 55 acres out of the Robert Ray survey, and valued at $440. The trial court found that the total amount of taxes due on all of the land for the years 1925 and 1926 amounted to $4,454.30, and foreclosed a lien in solido against the entire 177.3 acres for the gross *868 amount of taxes found to be due, and ordered the land sold for the purpose of satisfying the judgment.
There seems to be some confusion among the decisions of this state on the question of whether or not a judgment for taxes with foreclosure of the lien is void, where the taxes are due on two or more separate tracts of land and the court forecloses the lien on all of the land in solido for the gross amount of taxes due on all of such tracts. Davis v. West (Tex.Civ.App.)
We believe that these decisions and the views of the Supreme Court on the question, as reflected by the granting or refusing of writs of error therein, can be harmonized if we keep in mind the distinction that exists, where on the one hand two or more parcels of land are rendered for taxes in bulk with a single valuation, and, on the other, where the various parcels are assessed as separate and distinct tracts. In the case of Richey v. Moor,
Where the owner has rendered, or the assessor has assessed, the various parcels as separate and distinct tracts, with separate valuations, then the taxes due on each tract, and the liens securing the same, must be kept separate, and a judgment attempting to foreclose a lien in solido against all of such parcels for the gross amount of taxes due thereon would be unauthorized. Such was the holding of the Court of Civil Appeals under such a state of facts in the case of Davis v. West,
In the case of Harrison v. Orr (Tex.Com.App.)
While it is proper to assess each parcel of land separately for taxing purposes, there is nothing to prevent the landowner from rendering two or more distinct parcels of land as one tract; and where he has elected to do so and had indicated his desire to have the several parcels treated as one tract, there is no reason why the lien should not be foreclosed in solido against all of such parcels for the gross amount of taxes due thereon. State v. Baker,
In State Mortgage Corporation v. Ludwig (Tex.Civ.App.)
In the case at bar, the two parcels of land were contiguous, and were probably used and occupied as one tract. They are described in the petition by field notes as one tract. However, plaintiff's petition shows that the land was assessed as two parcels, with separate valuations. A part of the land was in the McKinstry survey, and was valued at $25 per acre. The other parcel was in the Ray survey, and was valued at $10 per acre. The owner had not elected to have the parcels treated as one tract and had not rendered them as such, but had rendered them separately. Since the petition shows that the two parcels were assessed and valued as separate tracts, the levee improvement district was not entitled to foreclose its lien in solido against both tracts for the total taxes due thereon. Such a judgment was without support in the pleadings.
The judgment of the trial court is therefore reversed, and the cause remanded for a new trial. *869