PRZGE DANIEL                      AUETTIN IL TEXAS
A-..Prs- nn?usaLar.


                                 Septembe.r’lS,   1949


       Hon, W. 0. Shafer                    Opinion No. V-902.
       county Attorneys
       Ect,or Geunv                         Ri:   ,The right of voluntary pur-
       Oddssa. Tya                                ahaseri under tax for~eclo-
                                                  sore’suits to rec0ver from
                                                  the District Clerk the excess
                                                  paid ‘above the taxes .dse.

       Dear MT, Sbafir~
                                                                                  .
                   Thenfoll0wiq basic facts upon which you request l9
       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 men-
             cys ,represenf.   rruds bid by thb,pur&asers     dt the .sales
             and being the.amountr remaining after the full gay-
             ment 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 ~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 a-
             side, 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 Legis-
    lature 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 purcbas-
    ers were not parties, thereto and occupy no higher status than~would
    any other atranger to the judgments. We Will not pass upen the va-
    lidityof the judpments’in question, as it makes no difference wheth-
    er 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 com-
    plain,~ai they were in no manner partiesto the ~suits or the judg-
    ments and admittedly bought the property and paid their bids vohm-
    tarily 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, time-
    ly 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 ~ajudgment in tres-
    pass to try title. against a tenant without making the la,ndlord a par-
    ty 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 110inte~eht  in’the subject matter at t&? time’of the r,ei$i-
tion of the judSment8 here involved, and are v way affeuted by the
judgments.

           Thengeneral 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 prej-
      udicially affected by such judgment or decree, and’that
      a stranger to the ,record who was neither a par-
      nrivv
      *      to the action cannot make such an aunlicahon.
                                                    .I
      it appears that the parties really in interest are con-
      tent that the judgment shall stand and. submit to the ir-
      regularities 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 jndg-
      ment .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 @iris-
      diction over its own judgments until they become final,
      with power to vacate. correct~or      ~amend same at the in-
      stance 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 gen-
      eral 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 porches-
era.  The intereat they acquired by their purchase    of the lota in ques-
tion 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 cub-
jcct 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-aes of whkh:   the partier dq not complain.‘*

              These purchasera had ne vested title or right insthese
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 ,witlathis we think they muat be conr
tent in the absence ef Borne statute giving them the relief they con-
template 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 CXCCSPfunda tzuned +wer by the Aeriff to the Cle,rk b:coti-
pliance 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 ltatute, been permitted to recovex even the
       taxer Iawfully lmemred 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. ac-
       cordingly paered statutes regulating @xi~ssubject, 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?l-
       untary 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. David-
     so%
     -   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 ref-
           erences.    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, andhav-
             ing 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 vimJoe. Greenspen’s S,ons I~,:onb 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 potilt-
       edly held that in tht abstnt,t tf rtmadhl    lcgi~latioa
       giving the right, one is not entitled to the tieU+f leked
       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 Tink-
       ler 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 col-
       lector, wherein the letttr of the law was not strictly fol-
       lowed 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             un-
 der 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 appli-
 cable-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 Ille 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 prop-
 erty 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 l8y relief thtre:
in, ad you ar.t accordingly se alvinid.

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



                                SUMMARY

            A purchaser  of real estate at a $ax foreclosure
     sale who voluntarily purchases and pays for said prop-
     erty aia amount in excess of what is necessary to aat-
     isfy the judgment in favor of the taxi& units is, not en-
     titled to r&cover the excess funds ar.iping from such
     sale in the b+ndm of ‘the District Clerk. Such excecs
     fundi do not bel?ng to tho’pprchaser but to the 0-r
     a@nat    whom the judgment ~a.8 render’ed, if timely
     claimd~within~threc yqara-from the date of sale, as
     provided in Articles 7328 and 734Sb. V.C.S.; and if such
     funds rie not claimed and received by him with$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.
