            TEEAITORNEY             GENERAL
                       OFTEXAS




Honorable B. Jay Jackson
County Attorney
Hood County
Granbury, Texas
Dear Sir:                 Opinion No. 0-6841
                          Re: Proper procedure for clearing
                               title to property purchased from
                               the State-four years after the
                               State's purchase at a delinquent
                               tax foreclosure sale whensaid
                               property 1s now occupied by a
                               "squatter".
          We have your request for an opinion from which we
quote :
        "Under a Judgment out of the District Court
    of Hood County, Texas, at Tax suit, an Order of
    Sale was Issued - in 1939 - the property sold at
    such sale to one of the taxing units -Hood County.
        "Then, under Order of the County Judge, the
    same property was duly advertised and sold at pub-
    1Lc outcry - second sale - about 4 years after the
    date of first sale. A local citfzen bid this prop-
    erty in and paid his money therefor, but finds a
    party - not defendant in judgment occupying - mere-
    ly a 'Squatter'. Now, is the present purchaser en-
    titled to a writ of Possession by virtue of the
    Original Tax Judgment provlsfon, or shall he be
    required to bring an action of Forcible entry and
    detainer and obtain his Writ of Possession through
    the Justice Court?
        "In the event he obtains a Writ of Posses-
    slon,out of the District Court Is it.the duty,.
    expense and obligation of the Taxing Unit that
    sold this property - Second sale, to bear such
    obligation; or shall the late purchaser be re-
    quired to pay same?"
        From the above it would appear that everything-in the
proceeding is regular until the purchaser finds the "Squatter"
occupglng the premises.
Honorable B. Jay Jackson, page 2            o-6841


        Both of your questions pertain to the same matter and
that is -- how to get the "Squatter" off the premises;and
at whose expense? We Will treat both questions as one, there-
fore.

        Section 6 of Article 7345b, Vernon's Annotated Civil
Statutes, provides:
         "All court costs, including cost of serving
    process, In any suit hereafter brought by or in
    behalf of any taxing unit for delinquent taxes
    . ......... shall be chargeable as court costs.'
        Article 7332 fixes the fees of officers in delinquent
tax suits and Article 7333, of the Revised Civil Statutes, pro-
vides for taxing of costs and reads as follows:
       "In each case such fees shall be taxes as
   costs against the land to be sold under judgment
   for taxes, and paid out of the proceeds of sale
   of same after the taxes, penalty and interest due
   thereon are paid, and in no case shall the State
   or county be liable therefor."
        Article 7328, V.A.C.S., provides:
       "All sales contemplated herein shall be made
   In the manner prescrtbed for the sale of real es-
   tate under execution."
        Section 7 of Article 7345b, V.A.C.S., reads as fol-
lows:
       "In the case of foreclosure, an order of sale
   shall Issue, and, except as herein otherwise pro-
   vided, the land shall be sold thereunder as in other
   cases of foreclosure of tax liens."
        Article 7330, V.A.C.S., reads as follows:
       "In all cases In which lands have been sold,
   or may be sold, for default In the payment of taxes,
   the sheriff selling the same, or any of his succes-
   sors In office, shall make a deed or deeds to the
   purchaser or to any other person to whom the,,pur-
   chaser may direct the deed to be made, . . e
        Article 3816, Revised Civil Statutes, reads as fol-
lows:
Honorable B. Jay Jackson, page 3          o-6841


        "When a sale has been made and the terms
    thereof comnlied with. the officer shall execute
    and deliver-to the purchaser a conveyance of all
    the right, title, Interest and claim which thr
    defendant In execution had in and to the property
    sold. ‘f

        In sales of real property under judgment of fore-
closure of delinquent tax liens these three articles apply
conjunctively to the making of the conveyance (deed) to the
purchaser; and the officer can only convey all right title,
interest and claim which the defendant in execution torder of
sale) had in and to the property sold. Inthe case of'Logan
v. Stevens Count   (C.A. 1904) 81 S. W. 109, affirmed by the
Supreme Court, 98'Tex. 283, 83 S.W. 365, speaking of warranty
by an officer the Court said:
       "It necessarily follows that the Court properly
   denied Appellant's relief upon the asserted warranty.
   For, pretermitting the question as to whether, In the
   absence of express authority, E. L. Walker would be
   empowered to make a covenant of warranty, there was
   no such covenant In this case; there being no author-
   ity for the execution of the deed which contained It."
        In Houston Oil Company of Texas v. Niles, 255 S.W. 604
(Corn.App. 1923) Rev. (C.A. 1916), Niles v. Houston Oil Company
of Texas, 191 S.W. 748, our Supreme Court said:
       "A deed of 'all the right, title, interest, and
   claim which we have in and to' certain land, which
   undertaking to warrant and defend all such right,
   title and Interest, is a quitclaim."
        Section 8 of Article 7345b reads as follows:
         II
              The net proceeds of any sale of such
              .   .   .

   property made under decree of court In said suit
   to any party other than any such taxing unit shall
   belong to and be dlstributed to all taxing units
   which are parties to thei suit which by the judgment
   In said suit have been f'ound to have tax liens
   against such property, pro rata and in proportion
   to the amounts of their respective tax liens as
     ltablished in said judgment, but any excess In
   t"ieproceeds of sale over and above the amount
   necessary to defray the cost of suit and sale and
   other exnenses herelrlabove made chargeable against
   said property, shall be Daid to the oarties legally
   entitled to such excess." (Undelrscoring ours
                                                             .




Honorable B. JAy Jackson, page 4             o-6841


         Section 9 of Article 7345b, V.A.C.S., reads as fol-
lows:
          "If the property be sold to any taxing unit
     . . . costs and expenses shall not be payable until
    sale by such taxing unit so purchasing same. . a
    and when such property Is sold by the taxing unit
    purchasing the same, the Droceeds thereof shall be
    received   by It for account of itself and all other
    said taxinR units adiudned In said suit to have a
    tax liens aRalnst Said-DrODerty and after Dayinq
    allycosts and exDense8, shall bi distributed among
    such taxinn units Dro rata and In proportion to the
    amount of their tax lien against said property as
    established In said judgment. . . . ."             .~
        Section 10 of said Article 7345b, V.A.C.S., reads as
follows:
        "The purchaser of property sold for taxes In
    such foreclosure suit shall take title free and
    clear of all liens and claims for taxes anainst
    such DroDerts delinquent at the time of judnment
    in said suit to any taxing unit which was a~party
    to said suit or which had been served with cita-
    tion In said suit as required by this Act. (Under
    scoring ours)
         Section 12, Article 7345b, V.A,C.S,, reads as fol-
lows :
        'In all suits heretofore or hereafter
    filed to collect delinquent taxes against pro-
    perty, judgment in said suit shall provide for
    'issuanceof writ of possession within twenty (20)
    days after the period of redemption shall have
    expired to the purchaser at foreclosure sale or
    his assigns; . . . . .'
           WhIle'saId Section 12 of said Article above-mentioned
provides    "In all suits . . . judgment . . . shall provide for
Issuance of writ of possession," the~writ of possession cannot
Issue now in favor of the assignee because Section 8 of~said
Article provides that "the net proceeds of any sale of such
proDerts made under a decree of court In said suit to any warty
other than such taxinn unit shall belonn and be-distributed to
all  taxinn   tin-        are narties  tn the SJI.LL”. etc.’   ANd it
further prociaes t   hat "anv excess  In the Droceeds   of   sale over
and above the amount necessary to defrs    u the   cost of~'suit' and
sale and other exi  Dense8 herelnabove made charaeable aaainst
such Droceeds, and to fulls discharae the iuclamentaaalnst
Honorable B. Jay   Jackson, page 5            o-6841


said pronerts shall be Daid to the narties leaalls entitled
to such excesg." (Underscoring ours)

        In the case of Watson v. Tamez, 136 S. W. (2d) 645,
after appellant faIIed to recover real property in trespass to
try title suit and'attempted to recover money paid upon pur-
chase of property at the tax sale, the court held:
        "The mere fact that a party pays money upon the
    purchase of property at a tax sale does not entitle
    him to a recovery of the amount paid, when years later
    he is unsuccessful ln an attempt to establish his title
    in an action of trespass to try title. American Realty
    Corp. v. Tinkler, T. C. S. 107, S.W. (2d) 627."
        Now in view of the statutory provisions hereinabove set
out the same having been fully complied with, and the decisions,
it is the opinion of this department that the county cannot
be required nor would it have any authority to expend any
money to pay the cost of removing the "squatter" from the
premises and that it is altoGether an,,issueto be settled be-
tween the purchaser and the squatter , neither of whom were
parties to the suit In which the foreclosure was had, and
there is no provision of law to make them parties thereto
now as It is finally concluded and closed.
        Trusting this fully answers your questions, we remain
                                     Yours very truly
                               ATTORNEY GENERAL OF TEXAS

                                     By s/Jos. V. Frnka
                                          Jos. V. Frnka
                                              Assistant

JVF:fb:wc

APPROVED OCT. 20, 1945
s/Grover Sellers
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman
