PRZGE DANIEL **AUETTIN** IL **TEXAS**

A-..Prs- nn?usaLar. Septembe.r’lS, 1949

Hon, W. 0. Shafer county Attorneys Ect,or Geunv Oddssa. Tya

Dear MT, Sbafir~ Opinion No. V-902. Ri: ,The right of voluntary **pur** ahaseri under tax for~eclosore’suits to rec0ver from the District Clerk the excess paid **‘ above**  **the taxes**  **.dse.**

Then foll0wiq basic facts upon which you **request** 

### l **9 .**  opinien are qrioted froui **y&r ’**  **re&2est:.**

‘Parties. who purchased **town** lots **at ’**  sheriff’s sales under taxif0reclosure judgments **contbmplafe .~**  institutfnp~suits against the State of Texas, County of Ector. Ecter County Independent Schocl District,“and .the City of **Odessa,** beingssome ofthe-parties to the fericlosure suits, **for** the **purpqc~of** rec0verin.g **rnF?-** eys n!w held in the **registry** d this court, which mencys ,represenf. rruds bid by **thb,pur&asers dt**  **the** .sales and being the.amountr remaining after the full gayment of the ‘taxes involved in the foreclosure su$ts. Thep&hmsrs w,qre not partiec’t0, **or** interested in the eriginal forecbrnre suits and owned no interest ,. in the rea! estate involved therein. Before their’ptq**iihasei it** **’ is**  **understood that**  **they** mrda no examinat$on of the foreclosure proceedings or **.of the**  titles. They probably purchased. the **lots as**  **a speculative**  venture at iqm.s less than they were worth and piobably expect**ed.**to resell.at.aprofit. ‘They paid for the Iota sums in ~excess ~ofthe amounts of the taxes **oyins.** The surplus **w&s pai+**  by **the**sheriff into.**the registry**  **of ti**  **c ’** **our.t** and is Snowso held. ‘Nobody has undertaken to prevent **tbt~purchaseir** ~from taking possession of the lots so #urchssed~ and,paid for by them, and so,far as **appears,**
‘thepurchasers may take possesmion **Without res** **’ isthce**  from any person.” Your question is :

‘Can the purchasers, under the circumstances, attack~the forcclosur~e judgments and have them set aside, and **recover** the surplus now held in the registry of the court?”

.:

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Hon. W. 0. Shafer, Page 2 (V-9Q2)

The manner and method of enforcing the cellection of delinquent ad valorem taxes ir exclusively statatory, and the Legislature has made compreheneire **previeieas covering**  **the subject**  which are in Chapter 10of Title 122,Articles 7319to 7345d. V.C.S.. inclusive, No such procedure as contemplated by these purchamers is anywhere provided for **by** statute, It appears that thejudgments in the tax foreclosure suits here involved have become final and the necessary process incident to the 

### saleof,the property involved has been executed, Whether thejudgments uponwhidh these sales wtre predicated were valid or void is immaterial, 

### as tke purcbasers **were** not parties, thereto and occupy no higher status than~would any other atranger to thejudgments. We Will not pass upen the validityof thejudpments’in question, as it makes no difference whether they,be void or~valid since our answer will be the same. If they be valid, **the purchasers**  certainly have no right to complain; and if they be invalid, there is no legal basis uponwhich they,may complain,~ai they were in no manner 

### parties to the ~suitsor thejudgments and admittedly bought **the property**  and paid their **bids vohm**  tarily and not **under** dtire.rs. Even parties to suits andjudgments must complain if they desire to do se within the time and manner prescribed by statuta,and the rules of.civil prec.edure. It appears that’tieither the plaintiffs’ nor thedefendants hava at any time, timely or otherwise, made:any complaint as to thejudgments centered in these cases.

The conclusions stated **rbtiyi** find amplerlegal support, as we shall proceed to show., 25 Texas Jurisprudence **568,** Judg: mods, Sec. 172, states, the general rule as follows:

*AAllparties, to ‘the judgment should be before the court when a,vacation is **sought.** Ordinarily’ none but the parties of record can have thej*gment set aside; but an exception~fo this rule exists as to persons who arc necessarily affected by thej’uiigmentand,who have equities entitled to be protected from itaopcration. The text ~ite.sas an..example of this exception ~a judgment in trespass to try title.against a tenant without making the la,ndlord a party statilig, “the IandIord may have thejudgment, set aside on motion during the term”;?t’tlins implying ‘thateven in insiuncei of this kinds relief must be sought at a time whep the **court** has jurisdiction to grant it. A landlord has a vital and present interest in the property at the time .ofthe rendition of such ajudgment’against his tenant in **a suit**  **in which**  he is not

### a party.

* Emphasis supplied by the writer throughout this epfaion.Hon;~ W. 0. Shafer, Page 3@-902).

These purchasers occupy **no** soch favored p~+itlea, for they had 110

inte~eht in’the subject matter at t&?time’of the r,ei$ition of thejudSment8 here involved, and are v way affeuted **by the**  judgments. Then

general rule is well stated in 34 Corpus Juris 344, Judgments, Sec. 558, in the following language:

“The general rule is that~ an’application to ‘epen

### a judgment or.deciee for irregularity can be made only. by a p(Lrty to tbe record who has been in some **way** prejudicially affected by suchjudgment or decree, and’that a stranger to the,record who was neither a parnrivv to the action cannot make such an aunlicahon. * .I it appears that the parties really in interest are content that thejudgment shall stand and.submit to the irregularities affecting its validity; it should not**Abe .sct**  .aside,at~the instance of a stranger.
.... This rule is, however, subject to the limitation that a person not a partyniay apply for the opening or vacation of thejndgment .where his rights ar,e injuriously affected thereby.

‘Buta’person whose interest was acquired after judg-- ment cannot **have the** judgment **vacated** for irregulati~ %ies of which the wrties do not comnlain.” In a comparatively recent case, Standard.Oil Co. v:State, 132S.W.2d 612 (Tar. Civ. App. 1939,e.rror &am.. judgm. car.). it was stat$d: “It cannot be doubted that the,trial court has @irisdiction over its ownjudgments until they become final, with power to vacate. 

### correct~or ~amend same at the instance of proper parties upon grounds sufficient to au* thoriae such action by the court. 25 Tex. JUr;. Sec. 127. p. ,520;.id. Seci 150, p, 545~.It is also a well settled general rule that .onlyparties to thejudgment can have it set aside, or its te’rms changed; 25 Tex. Jur., Sec. 172. p. 568; 34 C.J., Sec. 558, p. 344. There are, however, ~exceptions to this general rule. Where the rights ef one not a party to thej~udgment’are dire,ctly and necessarily affected he may intervene after judgment and have.his ri,ghts .protected.~ Moser v. Hussey, 67 Tex. 456, 3 S.W. 688; Dallas Oil h Ref.:Co. v. Portwood, Tex. Civ. AI@,

‘68,s.~. 1.017. Sutih.instance ‘is presented in a trespass tom try titlessuit against a tenant to which the landlord is not made~a party. In ,suchcase the landlord is a prop; or if not a necessary party to the **suit.** In such case the interest of the intervener antedates thejudgment and is directly in the subject matter of suit between the parties thereto. ” _Hon. W. 0. Shafer, **Page** 4 (V-902)

No euch case is presented, ho+ver, 68 to these porches**era.** The intereat they **acquired** by their **purchase** of the lota in **ques** tion 

### was nen-e&stent at the time of therendition of thejudgntekte, and at that time thCyhad~nointerest dircatly or .irdirectly ta thy cubjcct matter of the suits, hence none of the **ex~eptiens** recagnixcd by our. courtr **are** aDDliaable to them. It ie **statwd** in 49 **.Corrus** Jurir Secondurn 541, J~gmenk, Sec. 2431

Y

. . . a @orson whose interest was acquired after

‘udgment cannot **shave**thejudgment vacated for kreF .iqai-a : es of whkh the partier dq not complain.‘* These purchasera had ne

### vestedtitle or right ins**these** lots at,the time.thejudgments were iendered, and conccdedly neither the plaintiffs ncr the defendants have at,any time challenged the title subsequently voluntar.ily acquired by their purcharer or the right of possession incidentsthereto, and,witlathis we thinkthey muat **be** conr tent in the absence ef Borne statute giving them the relief they contemplate seeking. Under ouch circumstances, ,tc **naw** refund to them the excCa$ funda in the handa ofthe Clerk ariaing from,the~aales * Gould be tantamount to **peri-+ting** ,&em **to** reduce their **bid** by the amount **of such**  **cxc&s,** funds long **Sfter the**  sale8 have been fully con;-. summated, return made by the sheriff, deeds execute&and ‘delivered, and such CXCCSP

funda tzuned +wer by the Aeriff to the Cle,rk b:cotipliance with hir official duty in r&h carte. Such a procedure brs~ no clupport **in statute**  **or the**  de&ions of 0~ co&s.

**Our** Supreme Court in the ear.ly case .ofM,cdorti+c v. Edwards, ‘69Teat. ‘106,6 S.;W. 32 (l*g7), in a.n**tipiniq by**  **Ju~t+c** 

### Gafne.6.

raid:
.;‘After a **c~rcfd** research, ue, have found no’caae ia ‘&hi&a p&l&or at a void tax iale hai, ,without the aid. of a 

### l

**tatute,** been permitted to recovex even the taxer Iawfully 

### l

memred uponthe land and pai&:.by hin purChllSC. Titwould iaem equitable that he should 

### atlaamt recover the taxea which the land-owner ought to bvc paid, and which.be failed td **pay.** Many states ,have.accordingly paered **statutes** regulating @xi~s subject, and giving the relief indicated; so far ad we have **beeo** rble to **dbcover..** whenever this relief has been given or sanctioned by,a court of the tat reaortV it har bean by virtue 0f ,*tatutery law.

. . . Having no title to or lien upon the laitd~byvirtue of his tiaxpur,chare and dced+hti payment tb the atate mnat bedeemed the v?luntary paym?nt of a atraqpr, which entitlas him to nq aqulty...

Hon. W. 0. Shafer, Page 5 (V-902)

This case baa been many times cited. It in the law now as it was then. .The court in the case of North Texas Lumber Go. v. First National Hank ofAtlanta, 186s;W; 258 (Texr Civ. App; **1Qf6),** helo as tol~ows:

‘The court alsc, correctly refused to allow the appellant reimbursement for the taxes which it had theretofore paid uponthe land, The appellant **had**~no title whatever eitjixr to the land or the timber,‘and when it paid the taxes it,did so ae a volunteer,,and could not claim the right of **rubrogaticn.** * We, quote the following from the case of Schaffer v. Davidso% 97~ S.W. 858 (Tex. Civ. App. 1906,~erqor~ref.): - “It is,our opinion that the trial judge **correctly** : held **the** decree void~from its own statements and references. This being 80, the order of sale and sheriff’s deed are without support.

**.,** “The question **arises,** Was appellant entitled to i have plaintiffs refund him the.moaey he paid on account of,,thctaxcs? .Moat of the cases decided in this state ~. relate to void tax deeds made in mumnary sales, and it. is settled that insuch easea no right to reimbursement ~exfs,~, uaic~s conferred by statute.
. . ., The same r?ll+~ has been applied in a case inwhich thcsale was made. in ajudickl,procecding, which was held void by reaaop of the owner not having ~beea’made a p$rly. Mumme v. McClockey (Tex. Civ; App.) **66~S,W. 853.** **“ ’**  **In** Mummc:v. McClcmkey. **66 S.W;**  **853 (Tex.**  **Civ.** App; 1982, error ref;) the law~fsthus stated by 3 col@z

.

‘Appellant beiq a stranger to-the title, andhaving purchased at a void tax.sale, **equity** will net iubro- ,’ gate-him to the rights of'the state for taxes paid, aor entitle him tc be reimbursed by the owticr in a suit brought by her to recover her **property. ’**  In Lantron vim

Joe. Greenspen’s S,onsI~,:onb Stclel Co.. i0 S.W.Zc 247 (Tex. Div. **App. 1934)**  **the court**  ~oaclu%ed:

“It is equally clear that appellant wac .notentitled to be eubrojted to tlw riihts~ of~thcstate, county, ci$y. and school district **for** the amount cf the -alleged t+xe,s paid **by** hiin on said property. He w&s a~mere vpluntcir.Hon. W. 0. Shafer, Page 6 (V-902)

He aot only had aonstructive, but dctual nobrc, pier to his purchst. of tltc cxGtencc of facts *aWei ,nsrde the said sale hbsolutely v0td. It I0 ani~crmly **and** potiltedly held that in tht **abstnt,t tf**  **rtmadhl** lcgi~latioa giving the right, one is not entitled to the tieU+f 

### l eked for here, in cases of th*r okarrcter.” In a. mere, recent came,Americ8n R?alty **Cerporation** v. Tinklsr, 107 S.W.Zd 627 (Ter. Civ. App. 1939, otter V3f,). the **coult** rard:

‘: ‘We comt new to consider whether or not Tinkler was entitled to ajudgment for the taxes paid at tht .time of.his **pu~chasi** at the tax sales, and for subsequent taxes which **accrued** on t&eland in suit.. Our Supreme Court, ‘inpassing upon **tax** suits wherein **thm** sale **hadbecn** through a mmunary proceeding conducted by a tax collector, wherein the **letttr** of the law was **not** strictly followed has rtpcatedly.held thata purchrren at such sale is not entitled to reimburscmextt of tht taxer he htr **paid. ”**  It is quite apparsnt from ‘thefaegdng authorities that~ purcbsers~ have no right to **rectver** from fkc state and the othtr taxing m&8, plainti8fs’in tht tax suiti, the excisl moneys voluntar: ’ily .$aidby them at the tax swltr f0t the lots in qu+rtia. Under the admittcd’facts, **wt do~cot**  **kave a**  **oaae** whut p4pmcnt wasp-de under dartas, wL(ch might give **rise** to a rig&t for a rcftsyi or money thus paidJ h4noe it 48 not necessary fir (1sto discqss tke law applicable-to .su.cha sitaatfcn. This moncy~is n0w in (kc ha+i oi the DWriA Clerk wher’e it properly beion s uatil.ordercd by the c0urt’ to be paid to the owners against whom Ill ejudgments weft rendered or forwarded to the State Treasurtr as.the statute provides. These fundmdo not belong to the **purchasers,** but to the owners of the property if claimed within,three years from the datt of the Salem, after which time the fundr may be ercheatcd, as provided by stateto.

The disposition of **thert** fund. ir governed by Attorney Ckeral’a Opinion o-6013, a copy of which is herewith enclosed for your information and guidance. These purchasers~ hays nc right to Proceed in the tax suits which have long since btcome closed by final judgment to **recover** the ekcess moneys now in the hands of the District Cl&k. and it ia our view that the court doe@ not have jurisdiction to entertain such prtcetdings **and** grant 

### l 8y relief **thtre:** in, ad you **ar.t** accordingly se alvinid.

.Wc ipprtciam the crr+zfuMy**prepared brie** * wkich you submitted with your r~equcs t, **f& &a**  **been** quite kipful to 0c.Hon. W.~O. Shafer, Page 7 (v-902)

SUMMARY A **purchaser of**  real estate at a $ax foreclosure sale who voluntarily purchases and pays for said property aiaamount in excess of what is necessary to aatisfy thejudgment in favor of the taxi& units is, not entitled to r&cover the excess funds ar.iping from such sale in the b+ndmof ‘theDistrict Clerk. Such excecs fundi do not bel?ng to tho’pprchaser but to the 0-r a@nat whom thejudgment ~a.8 render’ed, if timely claimd~within~threc yqara-from the date of sale, as provided in Articles 7328 and 734Sb. V.C.S.; and if such funds rie not claimed and received by him with$nthe time and in the manner thur,provided, they are subject to be escheated under &e law applicable theret?.

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.’ Yc+s very truly ATTORNEY G&NERAt OF TEXAS

FIRST ASSIST@IT ATTORNEYGENE+I.