Hen. Jack C. Altaras Opinion No, V-647 County Attorney Johnson County Re: The interest ef the State in Cleburne, Texas certain real property as a result ofdelinquent tax sales, under the submitted facts,

Dear Mr. Altaras:

You requested ths opinion ofthis office as follows:

“In brief the facts are as fallows: The present owner of certain lets X8and 9in block 38 ef the City ofAlvarade, Johnson County, Texas, purchased said lots on June 11,1936, from J. B. Poindexter, a record owner; and this present lwrier has had continueus possession cfthe lets and paid taxes onthem from tht date ofpurchase. The abstract of title to these lots indicate that in 1891these lots were sold te the State ofTexas under ajudiciary tax sale. In this particular suit
ajudqmcnt 

### was taken against Fred Edmonston who was not a record owner and as far as the record appears had nointerest in the property. In 1896the same lets were sold under another judiciary tax sale to the State of Texas, thejudgment in this case havin(l been taken against F. R. Gonzales who was a record title owner. Beth deeds to the State ofTexas were recorded in the office ofthe County Clerk ofJohnson County.

“Both the records ef the tax collector of Johnson County and the records from the Comptroller indicate that there were ne delinquent taxes for the year 1896for which the suit was brrught, and that the taxes for the year 1891were redeemed by J. B. Poindexter mere than 2years after thejudgment, that is, in 1925.

“The question presented is whether or net the State ofTexas has any interest in these lots since they were conveyed to the state by adeed. .

Hon. Jack C. Altaras, Page 2 (v-647)

and never conveyed out ofthe state. Ifthe state ofTexas does have an intersst or title in these lots, what is the correct procedure for conveying the title out ofthe State of Texas?

“Article 7329 and the case ofMcMillan vs Owen 209 SW(2) 

### 622 suggests that title is in the State unless the property is redeemed within two years. Under the facts above stated the property was not redeemed within two years which presents the question ofwhether or not the state ofTexas can and did waive the two year redemptien period.

“The taxes were redeemed in 1925as stated above and the following is aquotation from the certificate ofredemption indicating that the State ofTexas had waived the right of redemption within two years and had permitted the taxes to be redeemed thereafter:

“‘In view ofthe above and foregoing and in accordance with law governing the redemption of lands sold to the ‘state or delinquent for taxes, any sale or delinquency to the State ofTexas, ofthe above described real estate, for taxes for the years specified herein, or for any year or years prior to Jan. 1,1885, should be and is held for naught, and should innoway operate as embarrassment or encumbrance to the title ofthe owner thereof, such sale or delinquencies being hereby declared cancelled on the records ofthis office, and said land redeemed from the State for the years stated herein.‘”

In response to our request for additional information, you have kindly furnished us a copy ofthe redemption receipt issued to J. B. Poindexter in 1925, the then owner, covering the taxes due for the year 1891,the first sale to be considered. You have also furnished us acertified copy ofthejudgment covering alleged delinquent taxes for the year 1896, together with the sheriff

’s deed to the State for 1896taxes, the second sale tobe considered.

We shall first consider the 1891sale. In 1891there
was no specific statutory authority for the sale of real estate for the delinquent taxes due thereon byjudicial proceedings, but only summary sale by the tax collector was provided for. This method, howevez, was not exclusive so as to preclude col-Hon. Jack C. Altaras, Page 3 (v-647)

lection byjudicial process if the taxing authority should choose to adopt that method. This was determined by the Supreme Court
as early as 1894in the case of City ofHenrietta v. Eustis, 26S.W. 619. Judge Nickels in the case ofState Mortgage Corp. v. State, 17S.W. (2d) 801(Comm. ofApp.) confirmed this in the following language :

“Summary procedure provided or forecasted in the Constitution (section 15,art. 8) does not preclude enforcement ofthe lien through user of equity jurisdiction. City ofHenrietta v. Eustis, 87 Tex. 14,26S.W. 619.”

We think any apparent claim that the State may now have growing out ofthis sale may be disposed ofwith the explanation that follows. First, that since it affirmatively appears that the suit was against adefendant who was not the record
owner and that the record owner was not made a party to the suit, thejudgment for the 1891taxes was, therefore, void and passed notitle to the State by virtue ofthe sale thereunder. Second, J. B. Poindexter, the owner in 1925, redeemed from the 1891sale, whether ~timely ,or not is immaterial. Ifthe 1891 judgment was void for the reasons pointed out above, the owner had the right to pay the delinquent taxes for said year without reference to thejudgment and sale thereunder. The Comptroller has issued his certificate in effect as follows:

“In view afthe above and foregoing and in accordance with law governing the redemption of lands sold to the State or delinquent for taxes, any sale or delinquency to the State of Texas, ofthe above described real estate, for taxes for the years specified herein, or for any year or years prior to January 1, 1885, should be and is held for naught, and should in noway operate as embarrassment or encumbrance to the title ofthe owner thereof, such sale or delinquencies being hereby declared canceled on the records ofthis office, and said land redeemed from the State for the years stated herein.”

In any event, we would not bejustified in going behind this certificate ofthe Comptroller, which shows the payment of the taxes and the receipt thereof by the State and the relinquishment ofany claim ofthe State by virtue thereof. The same is binding upon us and the State. Third, and last, as we hereinafter point out in our comment upon the 1896sale and our former Opinion V-420, we think the 1925redemption by J. B. Poindexter was authorized under the first part ofArticle 7291and had the effect to extinguish any claim ofthe State for the 1891taxes, even con-,

Hon. Jack C. Altarag, Page 4 (V-647)

ceding the validity ofthejudgment.

We consider next the 1896sale. We think this is a good place to correct the statement made in our Opinion V-420,
a copy ofwhich is herewith enclosed, wherein we stated categorically that Articl,e 7291,V.C.S. applied to summary sales and not tojudicial sales, and, therefore, the Comptroller would not have authority to cancel a sale made under judicial process. In this we were partly in error.

We are ofthe opinion that this statute should be divided into two parts, as follows:

(1) “The owner of real estate which has been bought in by the State for taxes, or his heirs or assigns, may redeem the same at any time prior to the sale thereof, by the payment to the collector ofthe county in which such real estate is situated or to the Comptroller, if in an unorganized county, ofthe amount designated by the Comptroller as due thereon with costs of advertisement.

. .”

(2) “And if it shall at any time appear to the satisfaction ofthe Comptroller that any land has been sold to the State for taxes which have been paid,

. , .he shall

.. .cancel such sale; and deliver to the owner ofthe land, or his agent, a certificate under seal ofhis department, setting forth the facts

.. .that such sale has been canceled; which certificate shall release the interest ofthe State and the same may be recorded in the proper county as other conveyances of real estate are recorded.‘*

We should keep in mind that these two divisions ofArticle 7291 have two separate and distinct objects: the first applies to redemption from the State where sale is made for delinquent taxes actually due; and the second applies to sales erroneously made to the State where no taxes were due or delinquent.

We think the first part ofthis statute, as indicated above, dealing with redemption from the State, does apply to summary sales and not tojudicial sales, except judicial sales made prior to 1895; and that the second part indicated above dealing with Sales to the State where the taxes have been previously paid applies alike to summary andjudicial sales. Therefore,
our statement in Opinion V-420 is modified accordingly. HOWever, as pointed out in Opinion V-420, the person in that opinion seeking a canc,ellation ofajudicial sale could not qualify for the relief sought under said article as he was neither an owner, heir, or assignee. The conclusion reached in Opinion V-420 may have well rested alone upon this ground without determining wheth-Hen. Jack C. Altaras, Page 5(V-647)

er Article 7291applied exclusively to summary sales or in part to summary andjudicial sales.

An explanation is in order, however, for abetter understanding of the construction we now place upon Article 7291. As pointed out in our Opinion No, O-6277, a copy ofwhich is herewith enclosed, this article was taken from Chapter 19,Page 31,S.S. 18thLegislature, 1883. This 1883act amended Section 3 ofthe 1879act (Sec. 3of said 1879act is now incorporated in said Art. 7289, V.C.S.) so that the same reads as Article 7291, V.C.S. read at the time ofthe passage ofthe 1895act providing for the first tzime by statute for judicial sales and as it naw reads. As pointed out abeve, only summary sales were previded for by statute in 1891;but this method of sale of real estate for delinquent taxes was net exclusive, andjudicial foreclosure and sale thereunder was sanctioned. Since judicial sales were net provided for by statute in 1991,there was, of course, no specific statutary provision fer redemption from such sales. But, in order net to deny the owner his constitutional right of redemptian, it must be cenceded that as tothe 1891taxes, Article 7291 afforded aright of redemption from judicial as well as from summary sales. This right acquired in 1891became vested as ofthat date and could be legally exercised in 1925, as was done by J. B. Poindexter, the then owner. However, judicial sales were, specifically provided for by statute in 1895, and in that act provisien was also made for redemption within two years from the date of sales made under the act. Said act kept intact, however, the first **part** ofArticle 7291, as indicated above, and obviously was there meant to have reference te delinquent taxpayers whose lands had theretofore been reported sold to the State for taxes under summary sales and tojudicial sales prior to 1895. This first judicial sales act repealed all laws and parts oflaws in conflict with it, and it omitted from its provision the second part ofArticle 7291, set cut above. This had the effect to leave it without change, since it is not in canflict with any other proviSions ofthe act. The lg95 judicial sales act was amended in 1897, but without change as te the terms of redemption ofland sold under the terms ofthe act and this act also carried forward the first part ofArticle 7291as indicated above, but again without reference to the second part ofsaid Article 7291. This 1897act also repealed all laws and parts oflaws in conflict with its provisions. Since the second part ofArticle 7291was not in conflict with any ofthe provisions ofthe lg95 act or the 1897act, the same continued in effect, and must, we think, be construed as applying to both summary andjudicial sales. Simply stated, upon the inauguraticn ofthejudicial sales act in 1895and its amendment in 1897, the Legislature intended that thereafter the first part ofArticle 7291would apply exclusively to summary sales and that the second part of said Article 7291would apply to both summary andjudicial sales.Hon. Jack C. Altaras, Page 6(V-647)

From 1895and prior to 1929, whentke Forty-first Legislature, Page 103,enacted Article 7328a as follows:

“That all sales of real estate made for the collection ofdelinquent taxes due thereon shall be made only after the foreclosure oftax lien securing same has been had in a court of competent jurisdiction in accordance with existing laws governing the foreclosure oftax liens in delinquent tax suits, ”

both summary aridjudicial sales prevailed under appropriate statutory authority. The foregoing first part ofArticle 7291 continued to afford amethod of redemption from summary sales made by the collector and the respective judicial acts afforded adifferent method of redemption from sales made under judicial foreclosure.

From the foregoing we conclude that the State does not have any present claim tothe real property here involved by reason, ofthe 1891sale, and the.redemption certificate ofthe Comptroller issued under the terms ofAr~ticle 7291, V.C.S. in 1925is effective’to release any claim ofthe State to the owner. Ifthere Gere no delinquent taxes owing for 1896for which suit
was filed and sale had thereunder, a certificate ofthe Comptroller as provided in Article 7291will be effective to extinguish any apparent claim in behalf ofthe State by reason ofsaid sale. It is observed that the statute provides for the recording ofthese certificates in the county clerk’s office as other conveyances pertaining to real estate.

SUMMARY

A delinquent tax suit, judgment, and sale against
anonowner of real estate, and without making the record owner aparty to the suit, is anullity and passes no title under a purchase by the State. In 1891there was no statutory provision authorizing suits to foreclose tax liens, but foreclosure suits and sales thereunder were sanctioned. The owner, his heirs or assignees had a.right of redemption under Art. 7291, V.C.S. from such sales. The State cannot go behind the certificate ofthe Comptroller showing the payment and receipt ofthe taxes by the State and the redemption thereof by the owner, for ’1891taxes, although not redeemed until 1925. Release &the State’s claim ofany interest in the land is accomplished by the Comptroller’s certificate of redemption.. . .

Hon. Jack C. Altaraa, Page 7 (V-647)

The first part ofArt, 7291, V.C.S., dealing with the redemption from the State of real estate sold for **delinquent** taxes, applied tr,judicial foreclosure erlss as well as summary sales upto the initiation ofthejudicial sales act in 1895. Subsequent to the initiation ofthejudicial sales act in 1895, this first provision ofthe statute applied only to summary sales. But the last part ofsaid article, dealing with lards sold te the State in satisfaction ofdelinquent taxes which in fact had been paid, applies alike tojudicial and summary sales. The Comptroller is autherieed to cancel such a sale upon the records ofhis office **and** te issue certificate showing that no taxes were due for which the land was sold, and the recording of such certificate by the owner is evidence ofthe relinquishment by the State ofar%yinterest in behalf ef the State in such real esGate arising **under** such asale. City ofHenrietta V.Eustis, 26S.W. 619;State Mortgage Corp. v. State, 17S.W. (2d) 801;Art. 7291, V.C.S. Opinion No. V-420 medified.

Yours very truly

ATTORNEY G#JNERAL OF TEXAS 

# BY ?LcLLAesistant

CPL/JCP Ehclosures

RNEY GENERAL

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