March 3 1, 1950 

Hon. Robert Gooding Opinion No. V-1025. 

County Attorney 

Red River County Rep: Wife is a necessary party to 

Clarksville, Texas a tax foreclosure suit, the 

property involved being the 

homestead but the separate 

property of the wife and her 

Dear Mr. Gooding: children by a prior marriage. 

You request the opinion of this office as to the validity 

of a tax judgment, order of sale, and tax deed to the State arising 

under the’following state of facts quoted ,from your letter: 

“I herewith’present an actual state of facts which 

exists relative to 40 acres of land in the William Cotton Survey and D. D.’ Bruton Survey located in Red Riv-’ 

er County, Texas. . D D 

“In 1919 Sam Moore died leaving his wife Myrtle 

Moore and three children, Sam Moore, Jr., Lucy Pearl 

Moore,’ now the wife of Joe Barnard, and Hazel Moore, 

now the wife of L. C. Johnson. Some time about 192~1 

the surviving wife Myrtle Moore married F. E. Moore. 

This 40 acre tract of land was the community property of Sam Moore and Myrtle Moore at the time of the 

death~~of Sam Moore. After Myrtle Moore married F. 

E. Moore they occupied and took possession of the 40 

acre tract under such conditions as to impress the property with homestead character insofar as the interest 

of Myrtle Moore. F. E.;Moore thereafter rendered the 

property for taxation purposes in his, F. E. Moore’s 

name. The taxes became delinquent. A suit was filed 

by the State of Texas vs. F. E. Moore to foreclose tax 

lien on the property. F. E. Moore was the only party 

cited. He did not appear and judgment was duly taken 

on April 14, 1939. On June 3, 1941, the property was 

sold under an order of sale and was struck off to the 

State of Texas. The sheriff’s return stated as follows: 

‘I executed to it a deed for said lands, this the Zlst day 

of July, 1941.’ This order of sale and sheriff’s return 

shows to have been filed the 21st day of July, 1941. . . . 

“In briefing this matter the following points came 

to my mind relative to this factual situation: 
Hon. Robert Goading, Page 2 (V-1025) 

“(1) Whether or not the suit for taxes against 

F. E. Moore is binding upon the interest of Myrtle 

Moore because the interests of Myrtle Moore were impressed by homestead character and the property has 

been rendered in the name of F. E. Moore. 

“(2) Assuming without deciding that the suit was 

binding upon Myrtle Moore, then, in that event, .whether or not the sale to the State of Texas on June 3, 1941, 

would have ended the liability of the Moores from payment of taxes from that date until the present time. 

“(3) In view of the fact that the deed purportedly 

executed by the sheriff as shown by his return dated 

July 21, 1941 whether or not the period of redemption 

has ever started to run. 

“(4) And, in view of the situation now existing 

whether or not a deed properly executed by the present 

sheriff of Red River County as successor in the office 

of the past sheriff that made the return would be valid 

and effective to start the period of redemption running 

by his executing the deed and having the same recorded 

in the Deed Records of Red River County. 

“(5) Whether or not upon the payment of the taxes and upon the issuance of a redemption certificate by 

the Tax Collector of Red River County that the encumbrance and cloud upon the title to this property would 

be done away with.” 

Reduced to simple terms your request presents the following question: 

Is the wife a necessary and indispensable party to a 

suit by the State to foreclose the constitutional and statutory liens 

for delinquent ad valorem taxes assessed against property constituting the homestead of the husband and wife where the homestead 

property is the separate property of the wife, and her children by 

a prior marriage? 

For the reasons hereinafter stated we think the answer 

to this question must be in the affirmative. We deem it expedient 

to say at the outset that our conclusion is not based upon any special 

right or exemption enjoyed by a married woman with respect to her 

separate property, in so far as its taxability is concerned, for there 

is none. Section 1, Article VIII, Constitution of Texas, provides as 

follows: 
Hon. Robert Gooding, Page 3 (V-.1025) ,,, 

“All property in this State, whether owned by 

natural persons or, corporations other than municipal, 

shall be taxed in, proportion to its value.‘! 

There are, of coume, certain constitutional and statutory exemp-~ 

tions notimportant here, 

A married woman’s property is subject to taxation.precisely as though she were unmarried.. 

:. <’ 

The Texas Constitution fu,rther provides: 

‘All (landed) property o b ..shall~be liable to seisure and sale for the payment of all taxes and penalties 

due by such delinquent;,and . . . ~may~be sold,for the 

VIII, 

taxes and ,penalties due . ~ . ” (Section 15, Article; 

‘The homestead . . . shall be . ,. . protected from 

forced sale, for, the,pay.ment of all debts except for . , . 

the taxes,, due thereon.,” (Section 50, ArtickXr 

Article 7172, V.C.S., provides in part: 

“All taxesupon real property shall be a lien upon such property until the same shall have ,been paid.” 

The foregoing is stated in order to make clear the basis upon which we predicate our answer. 

Our conclusion is based upon the premise that under 

the facts presented the judgment .of the district court in.= suit to 

foreclose, the State’s constitutional. and statutory lien aga~inst the 

husband alone as to the separate property of the wife, even though 

it constituted the homestead, is-,wholly ineffectual to foreclose or 

affect her r,ights. in her separate property, absent her being a party to the suit and served with citation 

In the case of Ball v. Carroll, 92 S.W. 1023 (Tex. Civ. 

App. 1906, error ref.), the court said: 

“The proceeding in a tax suit brought under the 

delinquent tax act is one in rem, and the object and purpose of the act is to enable the stakto condemn,’ seize, 

and sell all lands upon which taxes are;due and ,unpaid. 

All parties owning .or claiming any interest in the ,property are required to be made parties ~to. the suit and to 

be served with citation, . ~ . ” 
Hon. Robert Gooding, Page 4 (V-1025) 

Under the facts present the wife owned the fee title to 

one-half of the land and her children the other half, it being community property of herself and her former deceased husband, and 

upon his death intestate his community interest descended to his 

children, and the wife retained her half in her own right. The~present husband, the sole defendant in the tax suit, owned no interest in 

the fee, but merely a possessory homestead right. A tax suit and 

judgment against him alone, without the joinder of the wife and service of citation upon~her, is not sufficient, under the facts presented, 

to divest the title of the wife and her children by sale under the judgment and to vest it in the State, the purchaser at tax sale. This is 

true for the obvious reason that the title to the property was vested 

in others not parties to the suit or served with citation in the suit. 

The Supreme Court in an early case, R. N. Read v. M. 

A. R. Allen, 56 Tex. 182 (1882). held as follows: 

‘No case has been cited or has come under our 

observation (and it is believed that no well considered 

one can be found) which makes a judgment against the 

husband alone, and to which the wife was not otherwise 

a party, sufficient to divest her title to her separate 

property. * 

This case has not been departed from but on the contrary has been cited with approval in a number of subsequent cases. 

In the case of Foster v. Christensen, 67 S.W.2d 246 (Tex. Comm. 

App. 1934), Judge Smedley stated this rule as follows: 

“Judgment of foreclosure and sale in a suit against 

the husband when the land is the separate property of 

the wife does not affect her title and does not estop her. 

Williamson v. Conner, 92 Tex. 581, 50 S.W. 697; Wilson 

v. Johnson, 94 Tex. 272, 60 S.W. 242, 243. In the opinion in the case last cited, Judge Gaines said: ‘A judgment against him in a suit to recover property belonging to her in her own right, to which she is not a party, 

does not bind her.’ ” 

Section 3 of Article 734!ib, V.C.S., specifically provides 

as follows: 

“The laws governing ordinary foreclosure suits’ 

in the District Courts of this State shall control the 

question of parties, issuance, and service of process 

and other proceedings in tax suits, save and except as 

herein otherwise provided. , , . ” 

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_ Hon. Robert Goading, Page 5 (V-1025) 

The exceptions provided apply to those situations where 

constructive service is had;which of course is not applicable to the 

state of facts we here consider. 

The last case cited, supra, was a foreclosure suit in 

the district court and the same rule would apply in reference to necessary parties by the express terms of the statutes to the foreclasure of tax liens. 

Since the wife was a necessary and indispensable party to the State’s suit to foreclose the tax lien securing the payment 

of the taxes, the property being her separate property even though 

it be the homestead, the judgment, order of sale and sheriff’s deed 

are wholly void as to the wife and children in whom the title vested, and the State acquired no title by virtue thereof. The husband, 

the sole defendant in the suit, had no title; hence nones passed to the 

State by its purchase. The result is the same as though no suit had 

been filed, or judgment entered therein, in the absence of the wife 

as a party and service of process upon her or by her voluntary appearance in the suit. The taxes involved in the suit are still outstanding as though no suit had been filed or judgment entered therein. 

Had the property here involved been the community 

property of the wife and husband or the separate property of the 

husband, then the wife would have been bound by the judgment against the husband and the sale thereunder without being made a 

party to the suit, and this regardless of the fact the property is the 

homestead of the husband and wife. Kubena v. Hatch, 144 Tex. 627, 

193 S.W.Zd 175 (1946); Jergens v. Schiele, 61 T 255 (1884); City 

of San Antonio v. Berry, 92 T 319 48 S.W. 4;?(1898); Cooley v. 

lvlxller, 228 S<W. 1085 (‘IYex. Czm. App. 1921). 

Our answer to the above question renders it unnecessary for us to pass upon the other questionssubmitted by you. 

SUMMARY 

The wife is a necessary and indispensable party 

to a tax suit for delinquent ad valorem taxes on property which is the separate property of the wife regardless of the fact that the property is the homestead of 

the husband and wife. A tax suit and judgment against 

the husband alone, without the joinder of the wife and 
Hon. Robert Goading, Page 6 (V-1025) 

citation upon her, is wholly ineffective to divest the 

wife of her title to her separate property, even though 

the property be the homestead of the husband and wife. 

Yours very truly, 

PRICE DANIEL 

Attorney General 

APPROVED: 

W. V. Geppert 

Taxation Division 

Charles D. Mathews 

Executive Assistant 

By L?czlW D o 

Assistant 

LPL/mwb 

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