In this case is involved the construction to be placed on articles 7331 to 7334, Revised Statutes, 1925, and the question of the amount of fees *Page 434 collectible by the tax collector, the county clerk and the county attorney, in suits brought by the state for the collection of delinquent taxes.
This suit was instituted in the name of the State of Texas, on July 30, 1928, against E. M. Metcalf, Quinby Oil Company and Olney A. Slater, for the collection of taxes delinquent in payment for the year 1927, and for penalties, interest and costs and foreclosure of tax lien on certain lands described in the petition.
Only Slater appeared and filed answer; the other named defendants defaulted.
The exhibit attached to the petition shows the following:
"Recapitulation of Taxes Due.
State Taxes 34.50 County Taxes 4.83 District School Taxes 29.30 41.30 Costs 136.50 ------- Total of all taxes due 246.43 County Attorney 831.00 Dist. Clerk 1.50 ------- 1078.93"
Slater answered that he did not own all the lands described in the state's petition, but did own certain of said lands and had sought to pay all lawful charges and costs against the same, but the tax collector refused his tender to that effect.
It was claimed by Slater, as shown by the agreed statement of facts, that his land consisted of town lots and parcels of land which are unimproved and lie within certain additions to the town of Fort Stockton, all of which additions were subdivided into lots and blocks, surveyed and marked on the ground and plat of same filed and recorded in Pecos county. These additions consist of lands lying within certain original surveys, which had been subdivided into such additions.
The lands or lots owned by Slater and against which taxes were alleged to be delinquent are in three additions to the said town, viz: Rule Addition; Old Fort Addition, Orient Addition; and Second Orient Addition.
The agreed statement contains a copy of the assessor's inventory made by E. M. Metcalf, who then owned all the property in question, including the portion thereof now owned by Slater, an extract from which is as follows:
City Lots Block Addition Value
Fort Stockton 1 to 11 23 Orient 110
" " 1 to 11 24 " 110
*Page 435
and which in the same form describes the various lots, blocks, and additions, now claimed by Slater.
It was agreed that the total amount of state, county, road and special taxes, penalties and interest on the lands belonging to Slater and covered by this suit is $104.25, which sum was tendered to the tax collector, together with the sum of $20 additional, as costs after suit was filed, which tender was refused.
The trial court rendered judgment against Slater and his associates for the sum of $301.25, as taxes, penalty, interest and costs, accured on the property claimed by him, delinquent for the year 1927, and foreclosed tax lien thereon. It is not shown how this amount was arrived at, nor what portions thereof were claimed by the tax collector and county clerk, nor what the costs were for.
The trial court also rendered judgment against E. M. Metcalf and associates for the claimed taxes on other property included in the suit but now owned by Slater, and foreclosed the tax lien thereon. Only Slater prosecuted an appeal therefrom.
The Court of Civil Appeals modified the judgment to the extent of awarding judgment against Slater and associates in the sum of $104.25 for the amount of taxes, penalty, interest and costs, and for county attorney's costs $7, county clerk's costs $1, tax collector's costs $3, and district clerk's costs $1.50, aggregating the sum of $116.75, and foreclosed the tax lien for that amount. 14 S.W.2d 877.
The county attorney was allowed fees on the basis of three tracts — each addition as one tract — viz: $5 for the first and $1 each for the remaining two; the tax collector was allowed fees on the same basis of three tracts — each as constituting one "correct assessment " — viz: $3.
The only controversy between the parties is the amount of costs that the tax collector, county clerk and county attorney are entitled to under articles 7331 to 7334, Revised Statutes, 1925, depending upon the meaning of the term "tract" as applied to delinquent tax suits, in ascertaining the number of "tracts" involved in the suit.
The statute defines the term, as follows:
"Art. 7334. The term 'tract' shall mean all lands or lots in any survey, addition or subdivision or part thereof owned by the party being sued for delinquent taxes."
The Court of Civil Appeals states "the exact point presented has never come before an appellate court since the term 'tract' has been defined, so far as we have found, and so far as the attorneys representing the respective parties to the suit have found."
OPINION. We think the unit of calculation by which the number of tracts is to be fixed is the last or smallest subdivision into which the land has been divided. *Page 436
When a survey is divided into town or city additions, all lands or lots in each such addition owned by the party being sued constitute one tract, provided there be no subdivision of the addition.
If the addition has been divided into smaller subdivisions, such as blocks, then each such subdivision or block constitutes a tract, within the meaning of the statute, although it is divided into lots; in that case, the lots owned therein, whether all or only a part thereof, collectively constitute a tract, the unit being the block, unless such lots have in turn been subdivided, in which event the subdivided lot becomes the unit of measurement as a tract.
Applying the above rule, the county attorney is entitled to $5 for the first tract and $1 for each additional tract involved in the same suit; the county clerk is entitled to $1 for all services rendered in the suit (article 7332), and the tax collector to $1 for each "correct assessment" (article 7331), each tract considered as one assessment.
It follows from the foregoing that both the trial court and the Court of Civil Appeals erred in their judgments, which are here reversed and the cause is remanded for another trial.
The foregoing opinion is adopted as the opinion of the Supreme Court, and judgment will be entered in accordance therewith.
C. M. CURETON, Chief Justice.