March 31, 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 ofthe wife and her Dear Mr. Gooding: children by a prior marriage.

You request the opinion of this office as to the validity ofa taxjudgment, order of sale, and tax deed to the State arising under the’following state offacts quoted ,from your letter:

“Iherewith’present anactual state offacts which exists relative to 40 acres of land in theWilliam CottonSurvey and D. D.’Bruton Survey located in Red Riv-’ er County, Texas.
. DD

“In 1919 Sam Moore died leaving his wife Myrtle Moore and three children, Sam Moore, Jr., Lucy Pearl Moore,’ now the wife ofJoe 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~~ofSam Moore. After Myrtle Moore married F. E. Moore they occupied and took possession ofthe 40 acre tract under such conditions as to impress the property with homestead character insofar as the interest ofMyrtle Moore. F. E.;Moore thereafter rendered the property for taxation purposes inhis, F. E. Moore’s name. The taxes became delinquent. A suit was filed by the State of Texas vs. F. E. Moore toforeclose tax lien on the property. F. E. Moore was the only party cited. He did not appear andjudgment was duly taken onApril 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:

‘Iexecuted to it a deed for said lands, this the Zlst day of July, 1941.’ This order ofsale and sheriff’s return shows tohave been filed the 21st day ofJuly, 1941.
. . .

“Inbriefing 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 ofMyrtle Moore were impressed by homestead character and the property has been rendered in the name ofF. 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) Inview 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, inview ofthe situation now existing whether or not a deed properly executed by the present sheriff ofRed River County as successor in the office ofthe 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 ofRed River County.

“(5) Whether or not upon the payment ofthe taxes and upon the issuance ofa redemption certificate by the Tax Collector ofRed 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 thewife a necessary and indispensable party to a suit by the State toforeclose 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 ofthe 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 toher separate property, in so far as its taxability is concerned, for there is none. Section 1,Article VIII, Constitution ofTexas, provides as follows:Hon. Robert Gooding, Page 3 (V-.1025) ,,,

“All property inthis State, whether owned by natural persons or,corporations other than municipal, shall be taxed in,proportion toits 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 ob..shall~be liable to seisure and sale for the payment ofall 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 ofall 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 uponwhich we predicate ouranswer.

Our conclusion is based upon the premise that under the facts presented thejudgment .ofthe district court in.= suit to foreclose, the State’s constitutional. and statutory lien aga~inst the husband alone as to the separate property ofthewife, even though itconstituted the homestead, is-,wholly ineffectual to foreclose or affect her r,ights. inher separate property, absent her being a party to the suit and served with citation

Inthe case ofBall v. Carroll, 92 S.W. 1023 (Tex. Civ. App. 1906, error ref.), the court said:

“The proceeding ina tax suit brought under the delinquent tax act is one in rem, and the object and purpose of theact is toenable the stakto condemn,’ seize, and sell all lands upon which taxes are;due and,unpaid. All parties owning .or claiming any interest inthe,property are required tobe 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 ofthe land and her children the other half, itbeing community property ofherself 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 thejoinder ofthewife and service of citation upon~her, is not sufficient, under the facts presented, todivest the title ofthe wife and her children by sale under thejudgment and tovest it in the State, the purchaser at tax sale. This is true for the obvious reason that the title tothe property was vested in others not parties to the suit or served with citation in the suit.

The Supreme Court inan 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 nowell considered one can be found) which makes ajudgment against the husband alone, and towhich the wife was not otherwise a party, sufficient todivest her title toher separate property. * This case has not been departed from but on the contrary has been cited with approval ina number ofsubsequent cases. Inthe case ofFoster v. Christensen, 67 S.W.2d 246 (Tex. Comm. App. 1934), Judge Smedley stated this**rule** as follows:

“Judgment offoreclosure and sale ina 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. Inthe opinion in the case last cited, Judge Gaines said: ‘Ajudgment against him ina suit to recover property belonging to her in her own right, towhich she is not a party, does not bind her.’ ” Section 3ofArticle 734!ib, V.C.S., specifically provides as follows: “The laws governing ordinary foreclosure suits’ in the District Courts ofthis 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. , , . ” -.

.

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

The exceptions provided apply to those situations where constructive service is had;which ofcourse is not applicable to the state offacts 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 ofthe statutes to the foreclasure of tax liens.

Since the wife was anecessary 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, thejudgment, order ofsale and sheriff’s deed are wholly void as to thewife and children inwhom the title vested, and the State acquired no title by virtue thereof. The husband, the sole defendant in the suit, had no title; hence nonespassed to the State by its purchase. The result is the same as though no suit had been filed, orjudgment entered therein, in the absence of thewife 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 orjudgment entered therein. Had the property here involved been the community property ofthe wife and husband or the separate property ofthe husband, then thewife would have been bound by thejudgment against the husband and the sale thereunder without being made a party to the suit, and this regardless ofthe fact the property is the homestead ofthe husband and wife. Kubena v. Hatch, 144 Tex. 627, 193 S.W.Zd 175 (1946); Jergens v. Schiele, 61 T 255 (1884); City ofSanAntonio v. Berry, 92 T 319 48 S.W. 4;?(1898); Cooley v. lvlxller, 228 S<W. 1085 (‘IYex.Czm. App. 1921).

Our answer to theabove question renders it unnecessary for us to pass upon the other questionssubmitted by you.
SUMMARY The wife is a necessary and indispensable party toa tax suit for delinquent ad valorem taxes on property which is the separate property ofthe wife regardless ofthe fact that the property is the homestead of the husband and wife. A tax suit andjudgment against the husband alone, without thejoinder ofthe wife andHon. Robert Goading, Page 

### 6 (V-1025)

citation upon her, is wholly ineffective to divest the wife ofher title to her separate property, even though the property be the homestead ofthe 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

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