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 purahaseri 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 taxi f0reclosure judgments contbmplafe .~ 

institutfnp~ suits against the State of Texas, County of 

Ector. Ecter County Independent Schocl District,“and 

.the City of Odessa, beings some 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’ptqiihasei 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 expected. to resell.at.aprofit. ‘They paid for the Iota sums in 

~excess ~of the amounts of the taxes oyins. The surplus 

w&s pai+ by the sheriff into. the registry of ti c’our.t 

and is Snow so 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, 

‘the purchasers 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?” . 
: 

. . 

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 10 of Title 122, Articles 7319 to 7345d. V.C.S.. 

inclusive, No such procedure as contemplated by these purchamers 

is anywhere provided for by statute, It appears that the judgments 

in the tax foreclosure suits here involved have become final and 

the necessary process incident to the sale of, the property involved 

has been executed, Whether the judgments upon whidh 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 the judgments. We Will not pass upen the validityof the judpments’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 upon which they,may complain,~ai they were in no manner parties to the ~suits or the judgments and admittedly bought the property and paid their bids vohmtarily and not under dtire.rs. Even parties to suits and judgments 

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 the defendants hava at any time, timely or otherwise, made: any complaint as to the judgments centered 

in these cases. 

The conclusions stated rbtiyi find ampler legal support, 

as we shall proceed to show., 25 Texas Jurisprudence 568, Judg: 

mods, Sec. 172, states, the general rule as follows: 

*AAll parties, to ‘the judgment should be before the 

court when a, vacation is sought. Ordinarily’ none but 

the parties of record can have the j*gment set aside; 

but an exception~fo this rule exists as to persons who 

arc necessarily affected by the j’uiigment and, 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 the judgment, set aside on motion 

during the term”;?t’tlins implying ‘that even 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 .of the rendition of such a judgment’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 the judSment8 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 such judgment 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 the judgment 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 the jndgment .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, 

132 S.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 own judgments 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 .only parties to the judgment 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 the j~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 titles suit against a tenant to which the landlord 

is not made~a party. In ,such case the landlord is a prop; 

or if not a necessary party to the suit. In such case the 

interest of the intervener antedates the judgment 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 porchesera. The intereat they acquired by their purchase of the lota in question was nen-e&stent at the time of the rendition of the judgntekte, 

and at that time thCy had~no interest 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 the judgment vacated for kreF 

.iqai-a es of whkh : the partier dq not complain.‘* 

These purchasera had ne vested title or right ins these 

lots at,the time. the judgments 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 incidents thereto, and ,witla this we think they 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 of the 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 .of M,cdorti+c v. 

Edwards, ‘69 Teat. ‘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 upon the land and pai&:.by hin 

purChllSC. 

Tit would iaem equitable that he should at laamt 

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~by virtue of his tiax pur,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 of Atlanta, 186 s;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 upon the 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 in which thcsale was made. 

in a judickl,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,ons I~,:on b Stclel Co.. 

i0 S.W.Zc 247 (Tex. Div. App. 1934) the court ~oaclu%ed: 

“It is equally clear that appellant wac .not entitled 

to be eubrojted to tlw riihts~ of ~thc state, 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 a judgment for the taxes paid at tht 

.time of. his pu~chasi at the tax sales, and for subsequent 

taxes which accrued on t&e land in suit.. Our Supreme 

Court, ‘in passing 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 that a purchrren at such sale 

is not entitled to reimburscmextt of tht taxer he htr paid.” 

It is quite apparsnt from ‘the faegdng 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 .$aid by 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 (1s to discqss tke law applicable-to .su.ch a 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 e judgments weft rendered 

or forwarded to the State Treasurtr as. the statute provides. These 

fundm do 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 aia amount in excess of what is necessary to aatisfy the judgment in favor of the taxi& units is, not entitled to r&cover the excess funds ar.iping from such 

sale in the b+ndm of ‘the District Clerk. Such excecs 

fundi do not bel?ng to tho’pprchaser but to the 0-r 

a@nat whom the judgment ~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$n the 

time and in the manner thur, provided, they are subject 

to be escheated under &e law applicable theret?. 

‘.‘. ’ Yc+s very truly 

ATTORNEY G&NERAt OF TEXAS 

FIRST ASSIST@IT 

ATTORNEYGENE+I.