On Motion for Rehearing.
[4] After mature reconsideration of the issues involved upon this appeal, so fully and ably presented in the appellee’s motion for rehearing, while the matter is not free from doubt, we adhere to. oür former determination that the citation was insufficient, the tax judgment invalid, and that the sheriff’s deed should be canceled, and the cloud thereby cast upon appellant’s title removed. We think it clear that this suit was a direct attack upon the tax judgment, and that, under the record as here presented, this court is not at liberty to go behind the statement of facts approved below, and assume or presume that there might have been some other and different citation constituting its foundation than the one copied in our original opinion as being the citation upon which that judgment rested. Without detailing here the .contents of the statement of facts, it is sufficient to say that it recited the introduction in evidence of the record in the tax suit No. 36212, detailed the proceedings had therein, including enumeration of plaintiffs’ amended petition, the particular citation above mentioned, with the sheriff’s return thereon, the answer, the judgment, and this agreement: “It is agreed that a printed copy of the citation above set out is on file in the papers of cause No. 36212.”, “The citation above set out” was the one called for in the sheriff’s return; hence was the one upon which the judgment was rendered, and the agreement that a printed copy of it was so on file obviated any necessity of again copying it in the statement of the facts.
[5] Having agreed in the statement of the facts presented to this cdurt that the proceedings referred to constituted “the record” in the tax suit, there being no intimation that they were even objected to when offered in evidence upon the trial of this suit below, it is not thought the appellee is in position to now say they did not in fact comprehend the whole record, nor that, if he were, this court could so disregard what is before it.
[6] But in one respect we conclude the motion is well taken, and that is its contention that appellee should have been given judgment for $83.75, the aggregate amount paid out by him as actual taxes upon the lot at and since the tax sale, together with legal interest thereon from the date of this judgment below until paid, and a lien against the property to insure its payment.
This was a proceeding in equity, an appeal *222to the equitable powers of the court, and the tax judgment against which it sought relief was not absolutely void upon its face, as was that passed upon in Stewart v. Kemp, 54 Tex. 248, where a judgment condemning land to be sold for taxes purported to have been rendered at a. special term of the county court, when no authority then existed for holding special terms of that court. A distinction seems to be made between that class of cases, notwithstanding the somewhat indiscriminate use of the terms “void” and “voidable,” as was pointed out by the court in Carpenter v. Anderson, 83 Tex. Civ. App. 484, 77 S. W. 291, and those lite the present one, where the judgment is regular upon its face, and recites that due citation and service was made. In the latter instances it is held, upon the general principles of equity, that the purchaser at tax sale is entitled to be reimbursed for the amount paid out by him in satisfaction of taxes. Rowland v. Klepper, 189 S. W. 1033; Ry. Co. v. Hoffman, 193 S. W. 1140; State v. Dashiell, 32 Tex. Civ. App. 454, 74 S. W. 780.
It is admitted in the record here that the appellee paid in taxes upon the property involved, exclusive of court costs, the total sum of $83.75, nor is any question raised as to the existence or validity of the original tax lien to that extent. The motion for rehearing is accordingly granted in part, and our former judgment so reformed as to allow appellee a recovery for that amount, with 6 per cent, interest per annum thereon from September 13, 1917, until paid, and a lien upon the lot to secure its payment. In all other respects the motion is refused and our former judgment remains unchanged.
Granted in part.
Refused in part.