Hon. JosephH. Mlms

County Attorney Midland County Midland, Texas
Dear Sir: OpinionNo. 0-6844 Rer Procedure for'clearing title of~present owner of land on which an order for sale for delinquent taxes was issuedbut 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:

"OnSeptember 18, 1908, in causeNo. 377, in the District Court ofMidland County, Texas, styledThe State ofTexas vs,.

Unknown Owner, et al, a judgmentwas 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 defendentsand against all persons owning or having or claiming any interestFn the property or any part thereof. The court further ordered foreclosureof the lien and providing for issuance of order of sale, etc., and orderingapplication of the proceeds of sale to the satisfactionof 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, OriginalTown ofMidland, Midland County, Texas. The Sheriff nevermade a return on this order,but pencilled on the face of the order is the legend 'Soldto State Jan. 5, 1909, for $92.46, PrInterIs fee, $5.00, $97.46.’

"Therewas no deed given by Sheriff, nor any other actionhad thereafter, in so far a8 the record shows.

"Questions:Hon. JosephH. 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 opinionspreviouslyrenderedby this Department were sent to you upon the presumption that they sufficientlyanswered your inquiry;however, these opinions were based upon the premise that a valid salehad been had in the'proceedlngs. You have questionedwhether or not a sale was actually consummated in your case, and submitted the following:

"In causeNo. 377, referred to inmy request for opinion, the Order of Sale specifiedthat the shertff return the writ within 30 days, withhis return thereon BhOWing how he executed the same. In so far as the record discloses, no return was ever made showinghow the writ was disposed of. The legend on the firstpage of the writ, 'Soldto State Jan. 5, 1909, for $92.46, Printers fee, $5.00, $97.46,' is not signedby anyone. There has neverbeen, 80 far as the record inMidland County shows, a levyupon the land, an advertisement of salemade, posting of notices, or return on the writ showing that the land was sold to the State or to anyone else, or a deedgiven."

We are of the opinion that there was a slae of the lands under consideration. We reach this conclusion from the notationmade 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 officersproperly dischargethe duties imposed upon them. To sustant?atethe latterreason, we from 18 Tex. Jur., p. 692, and 34 Tex. Jur., p. 4 2, zuote respectively,as follows:

"Thepolicy of the law is to sustaina sheriff's sale where It appears to have been fairlymade. This is beneficial to both creditor and debtor. Any other course would, it has been observed,result in preventlngpersons from purchasing at such sales and paying anything like aHon. JosephH. Mims, page 3 (0-6844)

fair consideration,and would lead generally to the sacrifice of all property sold under judicialprocess. 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 lntendmentwill be assumed In favor of the sale, so as to secure, ;:;;,;e al If this can be done consistently

.s rules, the objectwhich was intended to be accomp-
!I

. . .the lawpresumes, shown, until the contrary is

that every public officer will dischargethe duties imposedupon him - in otherwords, that he will comply with the law. It will be presumed also, in absence of a showing to the contrary, that an officerhas as to past conduct donehis duty, and thathe has acted in accordance with the law, and authority.

and within, and not in excess of, his power

. ."
In opinionNo. O-6685, a aopy of which was previously sent to you, thisDepartmentheld that the irregularity of the sheriff's return or a failure tomake a return does not affect the sale; that the equitable title passes to the actual purchaser Irrespectiveof the irregularitiesin the sheriff'sreturn.

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 ooinionNo. o-5771, a copy of which youhave, the land can he redeemed and upon tender of the proper amount, a certificate of redemptionwill 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