Francis Kelly v. H. Medlin and Others, 26 Tex. 48

Egberts, J. We are of opinion that the defense was not made out in this case so as to entirely defeat plaintiff's right to recover. The plaintiff shows a title ¡to himself for the one-third of a league, except four acres at the spring on the river, and one undivided half of three hundred and twenty acres off of the back end of the tract, amounting in all to one hundred and sixty-four acres. In his amended jfetition he admits these exceptions, and claims a partition.

His object seems to be, so far as Medlin is concerned, to establish his right to one undivided half of the three hundred and twenty acres at the back end of the tract, and he seeks to recover one-half of it by partition. The deed from Mays, the patentee, to McGreal was made 3d of March, 18#, recorded April 8th, of the same year. This conveyed one undivided half of the whole tract.

It is admitted that there had been passed to Kelly by deeds of certain “assignees” “ all the title that McGreal acquired from Mays.” But Kelly did not hold under this branch of the title until the 6th of March, 1855, when he got his deed from Jones. The next deed in the order of time was made from Mays to Sarah Lee on the 23d of April, 1847, recorded in June, 1848, for all the title, claim and interest which the said Mays had in and to “ one undivided interest ” of three hundred and twenty acres to be taken off of the back end of said third of a league.

Sarah Lee and her husband Joseph Lee conveyed by deed to Medlin all the interest they had in said tract, conveyed to Sarah Lee by Mays on the 21st of April, 1849, Avhich was recorded 23d of May of the same year. Medlin was in possession when he purchased. Fisk obtained a tax title to the whole one-third of a league, and made a deed to Medlin for three hundred and twenty acres off of the back end of it, which was recorded on the 20th of March, 1850.

Mays made to Kelly a deed on the 5th of February, 1852, recorded on the 9th of the same month, for one undivided half of said third of a league, “ less one hundred and sixty-four acres, (the one hundred and sixty acres having been previously sold, to be taken out of the three hundred and twenty acres to be taken off of the back end of said third)—the four acres at another place.” Admitting that Medlin proved a continuous possession from May, 1849, until the institution of the suit on the 7th of April, 1856, and admitting that Kelly has, by his pleading, and by receiving the deed from Mays in 1852, waived any objection that may be made to Medlin’s deed having been executed by a tenant in common, for an undivided interest in a particular part of the tract, still his title to the whole of the three hundred and twenty acres is not supported by the facts in evidence.

He has not established his claim to it under the three years limitation, because he has not shown a good title to the whole of the three hundred 'and twenty acre tract. His deed from Mrs. and Mr. Lee, does not purport to convey the whole tract of three hundred and twenty acres. At the time he received1 their deed, Jones had a title through McGreal to one undivided half of the whole one-third of a league which had been recorded. His deed from Fisk does purport to convey the whole of the three hundred and twenty acres.

But Fisk derives his title from Gilbert; the land being levied on and sold as his property to pay his taxes. And it is not shown that this land was located by, or ever belonged -to Gilbert. The patent issued to Mays, assignee of Gilbert, on the 5th day of February, 1846. The land "was levied on and sold in September, 1848, under the assessment roll of 1846, which showed there to be f>2 21 due and owing to the State of Texas from Daniel Gilbert, as taxes for the year 1846, upon the taxable property of said Gilbert.

It does not appear, from the deed or otherwise, that this land was -assessed in 1846 as the property of said Gilbert, nor can that fact be inferred from any evidence in the case. This sale was not made under the general tax law of 1848, but under the provisions of a special law made that year, relating to assessments of 1846-7, and those assessments were •made under laws in force previous to 1848. (See Hart.

Dig., Arts. -3143, 3119, 3097, 3093, 3085, 3055, 3056, 2987-8-9 and 2990.) By a review of the statutory provisions here referred to, it will be seen that this land might have been assessed as the property of Gilbert, if the records in the Surveyor’s office showed that the survey was made for Gilbert. And if the deed showed that this land was sold for taxes due on it, it might be fair to presume that it was surveyed for Gilbert, and was so assessed, he being taken to be the true owner therefrom by the Assessor who made the assessment in 1846.

But by the act under which this sale was made, the Assessor, making a seizure and sale for taxes, was not confined to the exact property assessed. (See Hart. Dig., Arts. 3119, 3104, 3105.) He might seize and sell any property liable to taxation that was owned by Gilbert in 1848, at the time of the seizure and sale. The facts show that this land in 1848, when levied on and sold, was not Gilbert’s. And there is nothing to show that it was assessed as his in 1846, so as to fix a lien upon it for his taxes for the year 1846.

There is, however, another reason why this tax title of Fisk’s is not sufficient under the three years limitation. The sale being made in September, 1848, was not, and could not have been in pursuance to 11

an act to provide for the assessment and collection of taxes,” passed on the 20th of March, 1848. That act contemplated all sales under its provisions to be made after the first day of November, in each year. (Hart. Dig., Art. 3143.) This sale was made under a special act, which required the sale to be made in accordance with the act of 1846. (Hart., Art. 3119.) Therefore the tax deed being recorded is not “prima facie evidence that all the requisitions of the law have been complied with in making such sale,” as provided for in the general law of 1848. (See Hart.

Dig., Art. 3145.) To support this title then, in addition to the deed, other facts should have been proved, which constituted the authority of the Assessor to sell this land for taxes, and also the regularity of the sale should have been shown. (Yenda v. Wheeler, 9 Texas R., 408; Robson v. Osborn, 13 Tex. R., 298.) Medlin has not maintained the right under the five years limitation. For his deed from the Lees does not purport to convey the whole interest in the three hundred and twenty acre tract.

And although his deed from Fisk does assume .to convey the whole of the three hundred and twenty acre tract, he failed to prove that he had paid taxes on that amount of the land for five years. (Mitchell v. Burditt, 22 Tex. R., 633.) It is not shown how much, or what part of this three hundred and twenty acre tract has been occupied and improved by Medlin. It is not, therefore, necessary to decide how far his exclusive possession of that part would fix his right to it, or to the one hundred sixty acres which may include it, if it be less than one hundred and and sixty acres.

Judgment is reversed and the cause remanded for new trial. Reversed and remanded.