Hon. Joseph H. Mlms 

County Attorney 

Midland County 

Midland, Texas 

Dear Sir: 

Opinion No. 0-6844 

Rer Procedure for'clearing 

title of~present owner of 

land on which an order for 

sale for delinquent taxes was 

issued but no deed given by 

the sheriff to the State. 

On September 20, 1945, you requested the opinion of 

this Department upon the captioned subject, setting forth 

the following facts: 

"On September 18, 1908, in cause No. 377, in the 

District Court of Midland County, Texas, styled The State 

of Texas vs,. Unknown Owner, et al, a judgment was rendered 

which found that taxes were delinquent for the years 1889, 

1890, 1891, 1892, 1893, 1894, 1895, 1896, 1897, 1899, 1900, 

1901, 1905 and 1904, and foreclosing the tax lien of the State 

of Texas as to all named defendents and against all persons 

owning or having or claiming any interest Fn the property or 

any part thereof. The court further ordered foreclosure of 

the lien and providing for issuance of order of sale, etc., 

and ordering application of the proceeds of sale to the 

satisfaction of the judgment in the sum of $75.96. 

"Afterwards, on October 31, 1908, an order of sale 

issued on said property, Lots 1,,2, 3, 4, 5, 6, 7, 8, 9. 10, 

11 and 12, Block 19, Original Town of Midland, Midland County, 

Texas. The Sheriff never made a return on this order, but 

pencilled on the face of the order is the legend 'Sold to 

State Jan. 5, 1909, for $92.46, PrInterIs fee, $5.00, $97.46.’ 

"There was no deed given by Sheriff, nor any other 

action had thereafter, in so far a8 the record shows. 

"Questions: 
Hon. Joseph H. Mims, page 2 (0-6844) 

"1 . Does the record operate to cast cloud on the 

title of the present owners? 

"2 . If this question is answered in the affirmative, 

can the State now proceed to dlsposses the present owners of 

the land? 

"3. What interest, if any, has the State by reason 

of the recond? 

"4 . How can the present owners clear their title 

of the embarrassment of these proceedings?" 

Numerous opinions previously rendered by this 

Department were sent to you upon the presumption that they 

sufficiently answered your inquiry; however, these opinions 

were based upon the premise that a valid sale had been had 

in the'proceedlngs. You have questioned whether or not a 

sale was actually consummated in your case, and submitted 

the following: 

"In cause No. 377, referred to in my request for 

opinion, the Order of Sale specified that the shertff return 

the writ within 30 days, with his return thereon BhOWing 

how he executed the same. In so far as the record discloses, 

no return was ever made showing how the writ was disposed of. 

The legend on the first page of the writ, 'Sold to State Jan. 

5, 1909, for $92.46, Printers fee, $5.00, $97.46,' is not 

signed by anyone. There has never been, 80 far as the record 

in Midland County shows, a levy upon the land, an advertisement 

of sale made, posting of notices, or return on the writ showing that the land was sold to the State or to anyone else, 

or a deed given." 

We are of the opinion that there was a slae of 

the lands under consideration. We reach this conclusion 

from the notation made upon the writ, which is commonly 

done in all such sales, and second, because of the judicial 

policy to sustain a sheriff's sale, and the presumption 

that public officers properly discharge the duties imposed 

upon them. To sustant?ate the latter reason, we 

from 18 Tex. Jur., p. 692, and 34 Tex. Jur., p. 4 z 2, 

uote 

respectively, as follows: 

"The policy of the law is to sustain a sheriff's 

sale where It appears to have been fairly made. This is 

beneficial to both creditor and debtor. Any other course 

would, it has been observed, result in preventlng persons 

from purchasing at such sales and paying anything like a 
Hon. Joseph H. Mims, page 3 (0-6844) 

fair consideration, and would lead generally to the sacrifice of all property sold under judicial process. Consequently, 

a ccu-lt will not scrutinize the incidents of a judlclal sale 

with a view to defeating the proceeding; on the contrary, 

every reasonable lntendment will be assumed In favor of 

the sale, so as to secure, 

;:;;,;e al 

If this can be done consistently 

.s 

rules, the object which was intended to be accomp- 

!I . . . the law presumes, 

shown, 

until the contrary is 

that every public officer will discharge the duties 

imposed upon him - in other words, that he will comply 

with the law. It will be presumed also, in absence of a 

showing to the contrary, that an officer has as to past 

conduct done his duty, and that he has acted in accordance 

with the law, 

and authority. 

and within, and not in excess of, his power 

. ." 

In opinion No. O-6685, a aopy of which was previously sent to you, this Department held that the irregularity 

of the sheriff's return or a failure to make a return 

does not affect the sale; that the equitable title passes to 

the actual purchaser Irrespective of the irregularities in 

the sheriff's return. 

Based upon the foregoing statements, the State has 

an equitable title to the land in question, and can sell the 

same as provided in the statutes. However, as stated in 

ooinion No. o-5771, a copy of which you have, the land can 

he redeemed and upon tender of the proper amount, a certificate of redemption will be issued. 

Yours very truly 

ATTORNEYGENERALOF TEXAS 

By Robert 0. Koch 

Assistant 

ROK:AMM--dhs APPROVED OCT 8, 1945 APPROVED 

OPINION 

/s/ Carlo8 C. Ashley COMMITTEE 

BY B.W.B. 

FIRST ASSISTANT CHAIRMAN 

ATTORNEY GENERAL