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 of delinquent tax 

sales, under the submitted 

facts, 

Dear Mr. Altaras: 

You requested ths opinion of this office as follows: 

“In brief the facts are as fallows: The present owner of certain lets X8 and 9 in block 38 ef 

the City of Alvarade, Johnson County, Texas, purchased said lots on June 11, 1936, from J. B. Poindexter, a record owner; and this present l wrier 

has had continueus possession cf the lets and 

paid taxes on them from tht date of purchase. 

The abstract of title to these lots indicate that 

in 1891 these lots were sold te the State of Texas 

under a judiciary tax sale. In this particular suit 

a judqmcnt was taken against Fred Edmonston 

who was not a record owner and as far as the 

record appears had no interest in the property. 

In 1896 the same lets were sold under another judiciary tax sale to the State of Texas, the judgment in this case havin(l been taken against F. R. 

Gonzales who was a record title owner. Beth 

deeds to the State of Texas were recorded in the 

office of the County Clerk of Johnson 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 1896 for which the suit was 

brrught, and that the taxes for the year 1891 were 

redeemed by J. B. Poindexter mere than 2 years 

after the judgment, that is, in 1925. 

“The question presented is whether or net 

the State of Texas has any interest in these lots 

since they were conveyed to the state by a deed 
. . 

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

and never conveyed out of the state. If the state 

of Texas does have an intersst or title in these 

lots, what is the correct procedure for conveying the title out of the State of Texas? 

“Article 7329 and the case of McMillan 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 of whether or not 

the state of Texas can and did waive the two 

year redemptien period. 

“The taxes were redeemed in 1925 as stated 

above and the following is a quotation from the 

certificate of redemption indicating that the State 

of Texas had waived the right of redemption within two years and had permitted the taxes to be redeemed thereafter: 

“‘In view of the 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, of the 

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 in no way operate as embarrassment or encumbrance to the title of the owner thereof, such sale or delinquencies being hereby declared cancelled on the records of this 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 of the 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 a certified copy of the judgment 

covering alleged delinquent taxes for the year 1896, together 

with the sheriff’s deed to the State for 1896 taxes, the second 

sale to be considered. 

We shall first consider the 1891 sale. In 1891 there 

was no specific statutory authority for the sale of real estate 

for the delinquent taxes due thereon by judicial 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 by judicial process if the taxing authority should choose 

to adopt that method. This was determined by the Supreme Court 

as early as 1894 in the case of City of Henrietta v. Eustis, 26 S.W. 

619. Judge Nickels in the case of State Mortgage Corp. v. State, 

17 S.W. (2d) 801 (Comm. of App.) confirmed this in the following 

language : 

“Summary procedure provided or forecasted 

in the Constitution (section 15, art. 8) does not 

preclude enforcement of the lien through user of 

equity jurisdiction. City of Henrietta v. Eustis, 

87 Tex. 14, 26 S.W. 619.” 

We think any apparent claim that the State may now 

have growing out of this sale may be disposed of with the explanation that follows. First, that since it affirmatively appears 

that the suit was against a defendant who was not the record 

owner and that the record owner was not made a party to the 

suit, the judgment for the 1891 taxes was, therefore, void and 

passed no title to the State by virtue of the sale thereunder. 

Second, J. B. Poindexter, the owner in 1925, redeemed from 

the 1891 sale, whether ~timely ,or not is immaterial. If the 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 the judgment and sale thereunder. The Comptroller 

has issued his certificate in effect as follows: 

“In view af the 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, of the 

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 no way operate as embarrassment or 

encumbrance to the title of the owner thereof, such 

sale or delinquencies being hereby declared canceled on the records of this office, and said land redeemed from the State for the years stated herein.” 

In any event, we would not be justified in going behind 

this certificate of the Comptroller, which shows the payment of 

the taxes and the receipt thereof by the State and the relinquishment of any claim of the 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 1896 sale and our former Opinion V-420, we think the 1925 redemption by J. B. Poindexter was 

authorized under the first part of Article 7291 and had the effect 

to extinguish any claim of the State for the 1891 taxes, even con- 
, 

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

ceding the validity of the judgment. 

We consider next the 1896 sale. We think this is a 

good place to correct the statement made in our Opinion V-420, 

a copy of which is herewith enclosed, wherein we stated categorically that Articl,e 7291, V.C.S. applied to summary sales 

and not to judicial 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 of the 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 of the county in which such real estate is situated or to the Comptroller, if in an unorganized county, of the 

amount designated by the Comptroller as due thereon with costs 

of advertisement. . .” 

(2) “And if it shall at any time appear to the satisfaction of the 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 of the land, or his agent, a certificate under seal of his department, setting forth the facts 

. . . that such sale has been canceled; which certificate shall 

release the interest of the 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 of Article 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 of this statute, as indicated above, dealing with redemption from the State, does apply to summary sales and not to judicial 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 and judicial 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 of a judicial 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 7291 applied exclusively to summary sales or in part 

to summary and judicial sales. 

An explanation is in order, however, for a better understanding of the construction we now place upon Article 7291. 

As pointed out in our Opinion No, O-6277, a copy of which is 

herewith enclosed, this article was taken from Chapter 19, Page 

31, S.S. 18th Legislature, 1883. This 1883 act amended Section 3 

of the 1879 act (Sec. 3 of said 1879 act 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 of the passage of the 1895 act 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, and judicial 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 to the 1891 taxes, Article 7291 

afforded a right of redemption from judicial as well as from 

summary sales. This right acquired in 1891 became vested as 

of that 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 of Article 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 to judicial sales prior 

to 1895. This first judicial sales act repealed all laws and parts 

of laws in conflict with it, and it omitted from its provision the 

second part of Article 7291, set cut above. This had the effect 

to leave it without change, since it is not in canflict with any 

other proviSions of the act. The lg95 judicial sales act was amended in 1897, but without change as te the terms of redemption of land sold under the terms of the act and this act also 

carried forward the first part of Article 7291 as indicated above, 

but again without reference to the second part of said Article 

7291. This 1897 act also repealed all laws and parts of laws in 

conflict with its provisions. Since the second part of Article 

7291 was not in conflict with any of the provisions of the lg95 

act or the 1897 act, the same continued in effect, and must, we 

think, be construed as applying to both summary and judicial 

sales. Simply stated, upon the inauguraticn of the judicial sales 

act in 1895 and its amendment in 1897, the Legislature intended 

that thereafter the first part of Article 7291 would apply exclusively to summary sales and that the second part of said Article 

7291 would apply to both summary and judicial sales. 
Hon. Jack C. Altaras, Page 6 (V-647) 

From 1895 and prior to 1929, whentke Forty-first 

Legislature, Page 103, enacted Article 7328a as follows: 

“That all sales of real estate made for the 

collection of delinquent taxes due thereon shall 

be made only after the foreclosure of tax lien 

securing same has been had in a court of competent jurisdiction in accordance with existing 

laws governing the foreclosure of tax liens in 

delinquent tax suits, ” 

both summary arid judicial sales prevailed under appropriate 

statutory authority. The foregoing first part of Article 7291 

continued to afford a method of redemption from summary 

sales made by the collector and the respective judicial acts 

afforded a different method of redemption from sales made 

under judicial foreclosure. 

From the foregoing we conclude that the State does 

not have any present claim to the real property here involved 

by reason, of the 1891 sale, and the .redemption certificate of the 

Comptroller issued under the terms of Ar~ticle 7291, V.C.S. in 

1925 is effective’to release any claim of the State to the owner. 

If there Gere no delinquent taxes owing for 1896 for which suit 

was filed and sale had thereunder, a certificate of the Comptroller as provided in Article 7291 will be effective to extinguish any 

apparent claim in behalf of the State by reason of said sale. It 

is observed that the statute provides for the recording of these 

certificates in the county clerk’s office as other conveyances 

pertaining to real estate. 

SUMMARY 

A delinquent tax suit, judgment, and sale against 

a nonowner of real estate, and without making the 

record owner a party to the suit, is a nullity and 

passes no title under a purchase by the State. In 

1891 there 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 of the Comptroller 

showing the payment and receipt of the taxes by the 

State and the redemption thereof by the owner, for 

’ 1891 taxes, although not redeemed until 1925. Release &the State’s claim of any interest in the land 

is accomplished by the Comptroller’s certificate of 

redemption. 
. . . 

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

The first part of Art, 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 up to the 

initiation of the judicial sales act in 1895. Subsequent to the initiation of the judicial sales act in 

1895, this first provision of the statute applied only 

to summary sales. But the last part of said article, 

dealing with lards sold te the State in satisfaction 

of delinquent taxes which in fact had been paid, applies alike to judicial and summary sales. The 

Comptroller is autherieed to cancel such a sale 

upon the records of his 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 of the relinquishment by the State of ar%y interest in behalf ef the 

State in such real esGate arising under such a sale. 

City of Henrietta V. Eustis, 26 S.W. 619; State Mortgage Corp. v. State, 17 S.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 

.