On Motion for Rehearing.
Plaintiffs’ motion for rehearing has been considered and the same is overruled.
Regarding the exceptions to the answer of defendants Eason and O’Fiel which the trial court did not consider, it appears either that the trial court’s action was proper or that no harm could have resulted to plaintiffs from that action. See Rule 385(d), Vernon’s Texas Rules Civil Procedure; City of Wichita Falls v. Whitney, Tex.Civ.App., 11 S.W.2d 404; Head v. Commissioners’ Court of Hutchinson County, Tex.Civ.App., 14 S.W.2d 86.
The certified copies of the City’s tax judgment against plaintiffs and of the order of sale issued under this judgment, and of the sheriff’s return on said order of sale,'and the certified copy of defendant Eason’s judgment against the City were admissible under art. 3720, R.S.1925, independently of the requirements of art. 3726, R.S. 1925, Vernon’s Ann.Civ.St. art. 3726, which was not applicable to these documents. Art. 3726 may have applied to the sheriff’s deed to the City, but if it did, this deed was not necessary to show passage of title from the plaintiffs to the City. See Tarter v. Frazier, Tex.Civ.App., 159 S.W.2d 168, pg. 171 (Hn. 4, 5). We note too that this sheriff’s deed was filed among the papers of this, cause on September 19, 1949, while the hearing at which the temporary injunction was granted began on October 8, 1949. Article 3726 could not have applied to the deed from defendant Eason to defendant O’Fiel since the document was the original conveyance.
Defendants’ proof of title was necessarily as relevant and material as was plaintiffs’ proof of title, since it replied to and rebutted plaintiffs’ proof.
It may be that we went beyond the evidence in saying that the City “must be taken to have held its title for resale, since there is no evidence that it ever made any attempt to do anything with the property.” However, if we erred, the error seems immaterial since the land unquestionably did take the place of the City’s taxes and did represent those taxes in concrete form, .and there is nothing to show that the City ever intended to make any other specific use of the property which would be inconsistent with the City’s ultimate collection of its taxes and the payment of those taxes into the particular funds for which the respective levies were made. It was certainly the duty of the City’s officers to collect those taxes, and we ought not to assume that they would not, or that they would make some use of the property inconsistent with the objects for which those taxes were levied. Under City of Sherman v. Wright, 84 Tex. 421, 19 S.W. 606, 31 Am.St.Rep. 66, and Gordon v. Thorp, Tex.Civ.App., 53 S.W. 357, among other decisions cited in our original opinion, the land was certainly held for public purposes by the City within the meaning of art. 11, Sec. 9, of the Texas Constitution.
We are not to be understood as having expressed any opinion as to how the City *434should have dealt with money received by them from a sale of the land in excess of the amount of the tax judgment.
Plaintiffs say concerning paragraph two of our Conclusions of Law that they did deny that defendants Eason and O’Fiel had the same right as did the City to procure process under the City’s tax judgment against plaintiffs, if said defendants owned that judgment, and they refer us to their pleadings. We did not so construe their pleadings, but in deference to the construction which plaintiffs now place upon those pleadings, we withdraw that part of said paragraph two, which begins with the word since. The matter is immaterial under our holding respecting the dormancy of a part of the tax judgment.