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(216 S.W.)

tion, and they merely took their own in receiving it. The benefit to the property received by them from the sale of the other property was indirect. Every requirement of justice could be met by requiring the heirs, when they recovered the property which had been illegally sold, to pay to the purchaser the purchase price which had been applied in discharge of debts due by the estate. So that a holding against the sufficiency of such facts to constitute an estoppel in that case is not, we think, authority in this case, where the heirs agreed that the sale should be made as it was, and participated in a direct distribution of the proceeds thereof.

Appellants urge that all parties through whom both appellants and appellees claim, since they are charged with a knowledge of the law, must be held to have known that the administrator's conveyance was invalid; that all parties knew the facts, and that one who acts with equal knowledge of the facts cannot plead estoppel against the other party to the transaction. It is true that knowledge of the facts on one side, and ignorance thereof on the other, is in many cases an essential to the application by equity of the doctrine of estoppel.

On Motion for Rehearing. Appellants' attorneys, in their motion for rehearing, after a review in detail of the Texas cases cited in our opinion as authority for the proposition that those who knowingly participate in the proceedings which bring about an administrator's sale of property belonging to a decedent, and thereafter accept the proceeds of such sale, are estopped from denying its validity, assert as a conclusion therefrom that the proceedings in such cases were not void; that the application of the principles of estoppel was not necessary to a decision of such cases; and that whatever might have been said by the courts in regard to such matter is to be regarded as obiter dicta. In our original decision of the case, and in our consideration of the motion, we have not thought it necessary to determine whether as a matter of fact the sales in the cases referred to were void or not. The opinions in several of the cases assume that the sales were void and the decisions based on this predicate. In Grande v. Chaves, 15 Tex. 551, the court said: "It does seem that such grant [that is, the grant of administration in Bexar county during the course of which the sale was made] was without legal force or effect." And it is 'later announced by the court that the "controlling circumstance in this case, and which overreaches the question of the validity of the grant," were the facts which the court held sufficient to estop the plaintiffs from impeaching the title of the purchasers. In Ryan v. Maxey, 43 Tex. 195, the court said: "Whether the court in this case had or had not jurisdiction to order the sale, under the facts set up in the answer and established by the evidence, the plaintiffs were estopped from enforcing their claim to the land." In Stafford v. Harris, 82 Tex. 178, 17 S. W. 530, the estoppel was based on facts in connec tion with a sale ordered by the county court, and which was held in the opinion to be void.

[3] This is not always true, however. For instance, when a contract is made, and the parties thereto, as a basis therefor, assume a certain state of facts to be true, they are thereafter estopped from denying the existence of such facts, so made the basis of the contract, and it is said that in this class of estoppels "it can seldom be an answer to the alleged estoppel, unlike the case of estoppel by conduct, that the party supposed to be estopped acted in ignorance of the facts and under a mistake." Bigelow on Estoppel (6th Ed.) pp. 495 and 496; 16 Cyc. p. 719. It might perhaps with some propriety be said that this case belongs to this character of estoppel. The parties assumed that the administrator, as such, had the right to convey their interest in this land, and this fact was the basis of the agreement among themselves as to the disposition to be made of it, culminating in the administrator's deed. Ought they not thereafter be held estopped from denying the truth of the matter thus assumed? In those cases where the heirs are held to a ratification of the sale merely by the subsequent acceptance, with knowledge of the facts, of the proceeds of the sale, the principles of the law of agency are applied. Upon whatever theory the decision is to rest, there appears to be ample authority to support the concrete conclusion that, under the facts in this case, the appellants are precluded from denying the validity of the administrator's conveyance, and this conclusion seems to us to meet the justice of this par"It will be seen that this principle of estopticular case. pel is not limited, as contended for by the apWe therefore affirm the judgment of the pellant's counsel, to cases of voidable sales, but district court. extends to cases where the sale is void."

[4] If it be true that the courts were mistaken in the assumption of the premise of these decisions, yet the law of the case controlling the decision was announced on this assumption, and the law so announced becomes authority, and is not to be regarded as obiter dicta. C. J. vol. 15, p. 939, § 329, and authorities cited, particularly Brown v. C. & N. W. Ry. Co., 102 Wis. 137, 77 N. W. 748, 78 N. W. 771, 44 L. R. A. 586. Even if it should be admitted that these authorities are not controlling, they are strongly persuasive, particularly in view of the fact that the same conclusions of law are stated in well-considered decisions of other jurisdictions. In Deford v. Mercer, 24 Iowa, 118, 92: Am. Dec. 460, Chief Justice Dillon said:

In Smith v. Warden, 19 Pa. 424, it was lien upon the property, particularly in view of said: the petition's offer to do all equity required of plaintiff.

"The application of the principle does not depend upon any supposed distinction between a void and voidable sale. The receipt of the money [proceeds of the sale], with a knowledge that the purchaser is paying it upon an understanding that he is purchasing a good title, touches the conscience, and therefore binds the party in one case as well as the other."

The authorities, we think, not only justify, but require, that we adhere to the conclusions as announced in our original disposition of the case, and the motion for rehearing must be overruled.

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2. TAXATION 692-COLLATERAL ATTACK ON TAX SALE JUDGMENT.

If a tax sale judgment was without binding force, the objection that the attack upon it was a collateral one would make no difference.

3. MUNICIPAL CORPORATIONS

980(3)—V▲LIDITY OF TAX SALE OF MINOR WARDS' LAND. In view of Houston City Charter of 1905, art. 2, § 2, providing no ordinance shall be enacted inconsistent with, nor shall the city exercise powers prohibited by, general laws or the Constitution, and article 3, § 8, providing that on tax foreclosure an order of sale shall be issued and the land sold "as in other cases of foreclosure," and Vernon's Sayles' Ann. Civ. St. 1914, art. 2000, excepting judgments against executors and administrators and guardians, and article 2004, providing for payment of such taxes as a claim against the estate, a sale of ward's land under a tax judgment was invalid. 4. APPEAL AND ERROR 843(2)-UNNECES

SARY QUESTION NOT DETERMINED.

Where a tax sale of a minor ward's land is invalid, it becomes unnecessary on appeal to decide whether the general principle that one who owes the duty to pay the tax cannot acquire the title at a sale thereof is applicable to the guardian. 5. TAXATION

814(1)

-

REIMBURSEMENT

OF OWNER OF INVALID TAX TITLE.

In plaintiff's suit in trespass to try title to land claimed by others under tax sale, held that equity and conscience required that defendants be given back what they were properly shown to have paid out for such taxes as constituted a

On Motion for Rehearing.

6. TAXATION 810(3)-EVIDENCE SHOWING TAXES PAID WERE LIEN ON PREMISES.

In an action of trespass to try title, defended on the ground of tax title, evidence in the absence of objection thereto held sufficient to show that taxes paid by defendants for certain years constituted a valid lien against the land, for which defendants should recover from plaintiff owner.

7. MUNICIPAL CORPORATIONS 980(3)—FEES

IN SUIT FOR TAX SALE.

Under the Houston City Charter 1905, except as otherwise specified therein, the fees of officers in suits for sale of property to pay taxes are the same as those in similar suits for state and county taxes under Vernon's Sayles' Ann. Civ. St. 1914, art. 7691.

8. MUNICIPAL CORPORATIONS 980(3)—ATTORNEY'S FEES IN TAX SALE SUITS.

The 5 per cent. allowance for attorney's fees in city tax suits under Houston City Charter, art. 3, 8, supersedes the provision of Vernon's Sayles' Ann. Civ. St. 1914, art. 7691, which is otherwise applicable, in view of articles 7693, 7699, so that such fee is allowable.

Appeal from District Court, Harris County; K. C. Barkley, Special Judge.

Action by Osceola Perry against George L Teat and others in trespass to try title. Judgment for plaintiff, and defendants appeal. Judgment reformed and affirmed upon motion for rehearing.

Jno. W. Lewis and B. F. Louis, both of Houston, for appellants. Carothers & Brown, of Houston, for appel

lee.

GRAVES, J. In so far as appellants' claim of title to the land here involved is concerned, part of the Grota homestead tract out of the John Austin two-league grant in Harris county, Tex., the correctness of the judgment they now appeal from depends upon whether or not a sale of it for taxes under a judgment therefor in favor of the city of Houston was invalid. If the tax sale under which they claimed was invalid or void, which they vigorously deny, appellants in this court admit that they showed no title, and in effect concede that judgment for the land properly went for the appellee, coupled as it was with a recovery against the latter in their favor for what they were adjudged to have paid out for taxes, with a lien upon the property to insure its payment. Of this portion of the judgment awarding such recovery against her the appellee, in turn, cross-assignments, complains through

to

which further reference will later in this discussion be made.

(216 S.W.)

The question of the validity of the tax sale is logically of first concern. The facts underlying it were these:

In March of 1909 Lewis and Austin took a deed from one Mills to the land in controversy, which the evidence shows had, prior to that time, and as far back as about 1858, been continuously claimed by the appellee and her ancestors. In October, 1909, the city of Houston recovered judgment in the district court of Harris county against Lewis, Austin, their grantor Mills, and E. F. Perry, as guardian of the estate of appellee here, she being then a minor upon whose estate guardianship was pending, all of whom it had made parties to the tax suit, for the sum of $382.45, with interest and costs, for taxes accruing to the city on the land for the years 1904 to 1908, inclusive, together with foreclosure of the tax lien and order of sale through the processes of that court against all the parties, including the guardian of appellee's estate. No provision was made for certifying the judgment as against the guardian to the probate court for observance, but execution duly issued out of the district court, and the land was sold thereunder on March 1, 1910, to appellant George L. Teat for the sum of $450, to whom a sheriff's deed, purporting to convey the right, title, and interest of all of the parties in the property, including that of the minor, was accordingly made. The evidence was uncontroverted that Lewis and Austin furnished most of the money, and that the conveyance was taken in Teat's name for the benefit of all three of them. Lewis and Austin had waived service of process in the tax suit, entered their appearance, and agreed that judgment against them for the full amount the city claimed for taxes might be rendered, which in the manner above stated was done, the judgment reciting that it was to be satisfied only out of proceeds realized from the tax sale.

In contending that this tax sale was in all respects regular and valid, that it was not subject to collateral attack in this proceeding, and that it 'passed a clear title to the land to them, appellants very ably present two further arguments, stated by themselves in this way:

and suits to establish and foreclose such liens,
"Point 3. The statutory provision for tax liens,
and for sale of the property under such order of
sale, are special provisions with reference to
such particular subject-matter, and must be fol-
lowed; and they apply to minors as well as per-
sons sui juris, and such provisions, therefore,
will take precedence over general statutes in
reference to the collection of ordinary claims
or judgment from minors and their estates.
"Point 4. The probate court did not have ju-
risdiction to give to the city of Houston full
and complete relief in the foreclosure of said
tax lien and the sale of said land thereunder
as could the district court (being a court of
general jurisdiction, and of special jurisdiction
in foreclosure of tax liens), and it was there-
fore proper for the district court to render judg-
ment foreclosing said lien, and to decree that
order of sale should issue as against all of the
defendants, thereby providing for the enforce-
ment of the rights of the city against all of the
defendants in one and the same proceeding."

On the other hand, the appellee attacks the sale as being invalid upon two grounds: First, ́ the fees collected as costs were greater than the law allows; second, the fact that she was a minor at the time, with guardianship pending upon her estate in the probate court, entitled her to have the tribunal, rather than the district court, direct the sale as against her interest.

After careful consideration of the opposing views thus presented, we are constrained to agree with the appellee and to hold the tax sale invalid for both the reasons given. She strongly insists that, although the suit was one for taxes brought by the city of Houston under its charter of 1905 (Special Laws 29th Leg. 1905, p. 131), article 7691 of Vernon's Sayles' Statutes, prescribing fees of officers in similar suits for state and county taxes, applies, and that, as therein provided and as is held in the case of Hill et al. v. Lofton, 165 S. W. 67, so construing it, all of the fees here collected were illegal, except $1.50 allowed the clerk and $1 to the sheriff by ..$8 20 this statute.

It appears from the cost bill in this sale for taxes that, because of an error made by him in making out the original order of sale the district clerk issued an alias order, and that, apart from a fee of $15.05, allowed an attorney for bringing the suit, he and the sheriff actually collected the following items:

Clerk's Costs:

For costs preliminary to the issuance of the
first order of sale............................
Original order of sale and return...
Alias order of sale and return.......

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.........1 50

1 50

1 50

[1] That may be the correct view to take, but we find it unnecessary to determine the $11 20 matter that far, and do not do so, for the reason that the $1.50 of the clerk's cost and ..$225 the $6.50 of the sheriff's, arising wholly 50 from an error on the part of the clerk in making out the original order of sale here. 6 50 were clearly, we think, in no event charge900 able against appellee's interest, and rendered the sale a nullity as against her. It is not even claimed that any statute permitted $31 75 those charges; neither would the smallness

Costs on order of sale which was returned because of the clerk's error...................................... Costs on alias order of sale..

Costs in the way of commission alias order of sale ......

Total

12 00

of the amount affect the matter. Lufkin v. [in the due course of administration, and no exCity of Galveston, 73 Tex. 340, 11 S. W. 340; May v. Jackson, 73 S. W. 988.

[2] And if it was so without binding force, the objection that the attack upon it was a collateral one would make no difference. See paragraph (6), Hill et al. v. Lofton, supra, at page 70, and authorities there cited.

ecution shall issue on such judgment, but the same shall be certified to the county court, sitting in matters of probate, to be there enforced in accordance with law."

It will be noted that article 2000 makes no distinction between different kinds of liens, but applies to "mortgages and other liens" generally, including, of course, those for taxes, thus expressly and specifically interdicting the issuance of an order of sale out of the court foreclosing a lien of that character as against a guardian, and leaving that to be done through the probate court where the estate is being administered, as directed in article 2004. Such, therefore, must be the general rule, and to take a particular case out of its operation, granting that it may under some circumstances be done, facts constituting the exception must clearly appear. Lauraine v. Ashe (Sup.) 191 S. W. 563, 196 S. W. 501; Lauraine v. Vaughn, dissenting opinion and cited authorities, 193 S. W. pp. 712, 713. Were there any such here? Appellants, under their "point 4" above quoted, insist that the single circumstance of Lewis, Austin, and appellee's guardian having all been joined as defendants by the city in the suit to collect the taxes presented a condition rendering the powers of the probate court inadequate to give complete relief, citing as their main reliance the holding by majority opinion of this court in the recent cases of Lauraine

[3] Appellants' argument under their "point 3," that tax foreclosure proceedings generally under our Constitution and statutes are special in their character, must be strictly followed, and that they operate alike against minors and all other persons, since no exceptions are made, is one of much force and plausibility. If otherwise sound, how ever, it is not thought to be properly applicable in this instance, mainly upon the consideration, as above stated, the tax sale here was made under the Houston City Charter of 1905. In section 2 of article 2 of that instrument it is provided that no ordinance shall be enacted inconsistent with, nor shall the city exercise any power prohibited by the general laws or the Constitution of the state. In section 8 of article 3 this provision occurs: "In suits for taxes, the proper persons shall be made parties defendant in such suit, shall be served with process and other proceedings had therein, as provided by law for suits of like character in the district courts of this state; and in case of foreclosure, an order of sale shall issue and the land be sold thereunder, as in other case of foreclosure, which order of sale shall have all the force and effect of a writ of possession between the parties to the suit and any person claiming under the defendant by. Masterson et al., 193 S. W. 705 et seq.; any right acquired after the filing of the suit."

So that the city was not only not at liberty to trench upon the general laws of the state in reference to foreclosure sales for taxes, but was by this limitation in section 8 remitted to the same procedure there obtaining "in other cases of foreclosure." What was that procedure? The answer is found in article 2000, Vernon's Sayles' Statutes, the relevant portion of which is this:

"Judgments for the foreclosure of mortgages and other liens shall be that the plaintiff recover his debt, damages and costs, with a foreclosure of the plaintiff's lien on the property subject thereto, and, except in judgments against executors, administrators and guardians, that an order of sale shall issue to the sheriff or any constable of the county where such property may be, directing him to seize and sell the same as under execution, in satisfaction of the judgment.

Then succeeding article 2004 completes the specially prescribed process where a minor's estate is involved, as follows:

but the facts there clearly distinguish those

cases from the one now under consideration.

In the first place, they were not tax suits,

which

are strictly statutory proceedings wherein the court exercises a limited jurisdiction, and not one for the purpose of ad. justing equities between parties; in the second place, even if the narrowed reaches of a simple suit by the city to subject property to the payment of taxes had been the place to do it, there were in this instance no equities whatever to be adjusted; there was not even claimed to be a joint obligation between the opposing claimants of the prop erty to pay the taxes they were sued for, since their asserted rights therein emanated from wholly different sources, and they were merely made joint defendants by the city; hence there was lacking the determining consideration upon which this court sustained the authority of the district court to order the sale of Mrs. Allen's property in Lauraine v. Masterson, supra. See both opinions in that case, 193 S. W. at pages 710, 711, and 713. There being, therefore, no common claim of ownership of the property,

"Where a recovery of money is had against | no character of joint undertaking to pay the an executor, administrator or guardian, as such, the judgment shall state that it is to be paid

taxes upon it, and no pretense otherwise of any outstanding equities between those the

(216 S.W.)

city thus chose to make joint parties to the clusive, with neither proof that these had same suit, having for its sole objective the been properly levied and assessed against prosecution to final result of an asserted the land, nor that they constituted for the lien for taxes, it is thought the resulting amount adjudged a lien thereon. Upon exsituation, as affecting the minor's estate, amination of the record, its condition in this was the same as if her guardian had been sued alone, and consequently did not present such a state of facts as entitled the city of Houston to have her interest sold through the district court instead of the probate court, where the guardianship was then pending. R. S. 1911, art. 2000; Allen v. Reilly, 62 Tex. Civ. App. 624, 131 S. W. 1152; Stafford v. Harris, 82 Tex. 178, 17 S. W. 530; Rose v. Newman, 26 Tex. 132, 80 Am. Dec. 646; Meyers v. Evans, 68 Tex. 466, 5 S. W. 66; Schmidt v. Huff, 7 Tex. Civ. App. 593, 28 S. W. 1053; R. S. arts, 4230, 4234; Horton v. Garrison, 1 Tex. Civ. App. 31, 20 S. W. 773.

Indeed, in the Allen v. Reilly Case it is expressly held that a sale for taxes due by an estate must be made through the probate court; and, especially in the absence of contrary authority, no good reason is per ceived as to why it should not be so.

From these deductions it follows that the tax sale, being invalid for the reasons given, could not become the means of extinguishing the minor's title in favor of the appellants here. They having shown no other title, and she having both pleaded and produced sufficient proof, as we think, to sustain a title in herself by limitation, the court below properly gave her judgment for the land. That part of the judgment is accordingly in all things affirmed.

respect is found to be as claimed. Consequently, so much of the different cross-assignments as raise that issue must be sustained, and the part of the judgment decreeing a recovery in favor of appellants for the sum of $1,266.67 and interest, with a lien up on and order of sale against the land to se cure its payment, must be reversed, and that branch of the cause be remanded for further proceedings as herein provided.

[5] Upon the general principles of equity as applied by the courts in similar controversies, we conclude that in the forum of conscience it is just and right that appellants be given back what they are properly shown to have actually paid out for such taxes as constituted a lien upon the property. State v. Dashiell, 32 Tex. Civ. App. 454, 74 S. W. 781; Railroad Co. v. Hoffman, 193 S. W. 1143.

The testimony discloses that appellee admitted never having paid any taxes at all on the property herself, nor did her guardian, although testifying as a witness at this trial, claim that he ever had. The validity of the judgment itself for a portion of the taxes recovered for, that is, for the amounts accruing for the years 1904 to 1908, inclusive, was not questioned, the sale made under it alone being attacked for the irregularities we have held fatal to it. The appellants, while, as has above been stated, abandoning [4] The appellee also very earnestly con- in this court any claim of title they may tends that, apart from any question as to its have had to the land, other than such as invalidity, the tax sale to appellants could they acquired by virtue of the tax sale, did not, upon the facts surrounding it, become in the court below claim under a record the medium of any title into them as against title from the sovereignty of the soil down her, under the general principle that one into themselves, and, when the appellee here, who owes the duty to pay the tax cannot who was the plaintiff below, and as such acquire a title at a sale therefor, but will be had sued them in trespass to try title to the held to have merely paid what he owed with- land, attacked one of the links in that title out effecting any change in the title. Many as being forged, simply introduced no eviauthorities from other jurisdictions are cited as supporting the position, but as none from Texas are presented, and as the determination of its applicability here is obviously unnecessary, under our conclusion that this sale was invalid, it is not thought essential that the matter be gone into.

dence to controvert the affidavit so charging, and thereby failed to maintain the integrity of the connected paper title they offered. In her petition tendering them the issue as to who had title to the land, the appellee, in order to become entitled to recover, offered to do all such equities as might be required of her.

The cross-assignments relating to the recovery against appellee of what appellants In all these circumstances, it is not thought were held to have paid out for taxes upon the court erred in requiring her to return the land alone remain for disposition. Her all that appellants had paid out for actual chief complaint is that, in addition to taxes for the years 1904 to 1908, inclusive, which were embodied in the joint judgment obtained by the city against them all, appellants were awarded a recovery against her of amounts claimed to have been paid by them for taxes for the years 1909 to 1913, in

taxes and proper collection charges thereon, but only in fixing an amount without sufficient proof that it comprehended nothing more nor less than such an amount.

Pursuant to these conclusions, the portion of the judgment awarding the money re covery against appellee is reversed, and that

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