I concur in the disposition made of the case, but for reasons different from those stated by Justice Stokes.
Cynthia M. Puls was not a party to the suit brought by the City of Booker to collect taxes. Ordinarily a person who is not a party to a suit is not bound by the judgment rendered therein. Scales v. Wren,103 Tex. 304, 127 S.W. 164; White House Lumber Co. v. Denny, Tex. Civ. App. 75 S.W.2d 709, writ of error refused. Strangers to a judgment may attack it collaterally or otherwise as they see fit. Urban v. Bagby, Tex.Com.App., 291 S.W. 537; Thomas v. Farris, Tex. Civ. App.132 S.W.2d 435, writ of error dismissed, judgment correct. When the wife's interest in the homestead will defeat an action involving it, she must be made a party to the *Page 912 suit if she is to be bound by the judgment. Jergens v. Schiele,61 Tex. 255; Behrens v. Behrens, Tex. Civ. App. 186 S.W.2d 697; Speer's Law of Marital Rights in Texas, Section 522. The pleadings of a stranger to a judgment, in an attack on the judgment are sufficient if they show a meritorious defense to at least a substantial part of the judgment. National Loan Investment Co. v. L. W. Pelphrey Co., Tex. Civ. App. 39 S.W.2d 926.
The petition of the appellee, Cynthia M. Puls, in this suit to nullify the sale of the homestead shows that she had a defense to the judgment under which the sale was held to the extent that the judgment ordered a sale of the homestead to satisfy personal property and poll taxes. In the case of National Loan Investment Co. v. L. W. Pelphrey Co., supra, the Loan Company brought suit to enjoin an execution sale of property on which it held a lien subordinate to that of Pelphrey Co. Pelprey Co. were paving contractors and had obtained a judgment foreclosing an assessment lien on the property. The Loan Company was not a party to the foreclosure suit. It sought to enjoin the execution sale on the ground that excessive attorneys' fees had been allowed in the foreclosure suit. The Loan Company obtained a temporary injunction and appealed from the order of the trial court dissolving it. The Court of Civil Appeals held that the Loan Company, being a stranger to the foreclosure suit, could attack the judgment in it collaterally on the pleading that the attorneys' fees were unreasonable and constituted an excessive charge ahead of its inferior lien, reinstated the temporary injunction, and remanded the case for trial on its merits.
I can perceive no distinction in principle between that case and this. The equities alleged by Mrs. Puls were equally convincing; a substantial part of the judgment, more than twenty-five per cent, in the suit of the City of Booker represented delinquent personal property and poll taxes not secured by a lien on the homestead.
Therefore, I am of the opinion that whether appellees' suit constitutes a direct or collateral attack on the judgment in the City of Booker case is not decisive of this appeal.
The judgment in the tax suit was, however, binding on Mrs. Puls to the extent that it foreclosed a lien on the homestead for taxes chargeable against it. One line of decisions holds that sale of a homestead on foreclosure of a lien securing a debt for a sum larger than the amount with which the property was properly chargeable is void and conveys no title. Wright v. Straub, 64 Tex. 64; Girardeau v. Perkins,59 Tex. Civ. App. 552, 126 S.W. 633, writ of error refused; Hatch v. Kubena, Tex. Civ. App. 190 S.W.2d 175, writ of error granted and case pending in the Supreme Court. This line of authorities apparently stems from Wright v. Straub, supra, which involved a summary tax sale. The strict rules followed in determining the validity of summary tax sales do not apply to judicial tax sales, which are controlled by the rules governing judicial sales generally. Brown v. Bonougli, 111 Tex. 275,232 S.W. 490; Restivo v. Franklin, Tex. Civ. App. 177 S.W.2d 811, writ of error refused. Another line of cases holds that the sale of a homestead on foreclosure of a lien securing a debt for a sum larger than the amount with which the property is properly chargeable conveys title if any part of the debt is secured by a valid lien on the property and is due and owing. W. C. Belcher Land Mortgage Co. v. Taylor, Tex.Com.App., 212 S.W. 647; Floyd v. Hammond, Tex.Com.App., 268 S.W. 146; Wood v. Eastland Building Loan Ass'n, Tex. Civ. App. 75 S.W.2d 466, writ of error refused; Breitkreutz v. Cook, 135 Tex. 574, 144 S.W.2d 534. Although the sales in the cases last cited were made by virtue of deeds of trust, it seems to me that the reasons for upholding such sales are equally applicable to judicial tax sales. I am also of the opinion that the reasons for upholding such sales are more cogent than those assigned for holding such sales void. It follows that the appellant acquired title to the appellees' homestead at the sheriff's sale in the City of Booker suit and that appellees can defeat such title only by showing equitable grounds therefor.
As Mrs. Puls had no defense to that part of the City of Booker suit seeking to foreclose a lien on her homestead for taxes properly chargeable against it and was therefore bound by the judgment to that extent, it became necessary for her to make a timely offer to pay those taxes in order to avoid the effect of the foreclosure sale. Floyd v. Hammond, supra. The time for making such offer was prior to the sale. Miller v. Gibralter Say. Bldg. *Page 913 Ass'n, Tex. Civ. App. 132 S.W.2d 606, writ of error dismissed, judgment correct; Breitkreutz v. Cook, supra.
The appellee, Cynthia M. Puls, having failed to tender the amount legally due as taxes on her homestead prior to its sale for such taxes, cannot now, by an offer to do equity, defeat the title acquired by the appellant at such sale.
For the reasons stated I concur in the judgment reversing and rendering that of the trial court.