Hen. Jack C. Altaras                     Opinion    No,   V-647
County Attorney
Johnson County                           Re:   The interest   ef the State in
Cleburne,  Texas                               certain  real property   as a
                                               result of delinquent   tax
                                               sales, under the submitted
                                               facts,

Dear   Mr.   Altaras:

             You requested      ths opinion    of this    office   as follows:

              “In brief the facts are as fallows:          The pres-
       ent owner of certain        lets X8 and 9 in block 38 ef
       the City of Alvarade,        Johnson County, Texas,          pur-
       chased said lots on June 11, 1936, from J. B. Poin-
       dexter,    a record    owner; and this present        lwrier
       has had continueus        possession      cf the lets and
       paid taxes on them from tht date of purchase.
       The abstract      of title to these lots indicate       that
       in 1891 these lots were sold te the State of Texas
       under a judiciary       tax sale.    In this particular      suit
       a judqmcnt      was taken against Fred Edmonston
       who was not a record          owner and as far as the
       record    appears    had no interest       in the property.
       In 1896 the same lets were sold under another ju-
       diciary    tax sale to the State of Texas,         the judg-
       ment in this case havin(l been taken against F. R.
       Gonzales     who was a record        title owner.     Beth
       deeds to the State of Texas were recorded                in the
       office of the County Clerk of Johnson County.

              “Both the records     ef the tax collector of
       Johnson County and the records         from the Comp-
       troller   indicate  that there were ne delinquent
       taxes for the year 1896 for which the suit was
       brrught,    and that the taxes for the year 1891 were
       redeemed      by J. B. Poindexter     mere than 2 years
       after the judgment,      that is, in 1925.

            “The question presented   is whether   or net
       the State of Texas has any interest   in these lots
       since they were conveyed   to the state by a deed
                                                                              .   .




Hon.   Jack C. Altaras,     Page   2 (v-647)




       and never conveyed     out of the state.    If the state
       of Texas does have an intersst      or title in these
       lots, what is the correct    procedure    for convey-
       ing the title out of the State of Texas?

            “Article   7329 and the case of McMillan        vs
       Owen 209 SW(2) 622 suggests        that title is in the
       State unless the property     is redeemed     within
       two years.     Under the facts above stated the
       property    was not redeemed     within two years
       which presents    the question   of whether or not
       the state of Texas    can and did waive the two
       year redemptien     period.

              “The taxes were redeemed        in 1925 as stated
       above and the following     is a quotation   from the
       certificate   of redemption   indicating   that the State
       of Texas had waived the right of redemption          with-
       in two years and had permitted        the taxes to be re-
       deemed thereafter:

              “‘In view of the above and foregoing          and in
        accordance     with law governing       the redemption      of
        lands sold to the ‘state or delinquent        for taxes, any
        sale or delinquency       to the State of Texas,     of the
        above described      real estate, for taxes for the
        years specified     herein,   or for any year or years
        prior to Jan. 1, 1885, should be and is held for
        naught, and should in no way operate           as embar-
        rassment     or encumbrance       to the title of the own-
        er thereof,    such sale or delinquencies        being here-
        by declared     cancelled    on the records     of this of-
        fice, and said land redeemed         from the State for
        the years stated herein.‘”

            In response    to our request for additional   informa-
tion, you have kindly furnished      us a copy of the redemption    re-
ceipt issued to J. B. Poindexter      in 1925, the then owner, cover-
ing the taxes due for the year 1891, the first sale to be consider-
ed. You have also furnished        us a certified copy of the judgment
covering   alleged  delinquent   taxes for the year 1896, together
with the sheriff’s   deed to the State for 1896 taxes, the second
sale to be considered.

            We shall first consider      the 1891 sale.  In 1891 there
was no specific    statutory   authority  for the sale of real estate
for the delinquent    taxes due thereon by judicial     proceedings,
but only summary       sale by the tax collector   was provided     for.
This method, howevez,        was not exclusive   so as to preclude     col-
Hon.   Jack C. Altaras,    Page   3 (v-647)




lection by judicial process    if the taxing authority   should choose
to adopt that method.    This was determined      by the Supreme     Court
as early as 1894 in the case of City of Henrietta      v. Eustis,   26 S.W.
619. Judge Nickels    in the case of State Mortgage      Corp. v. State,
17 S.W. (2d) 801 (Comm.     of App.) confirmed    this in the following
language :

             “Summary      procedure     provided  or forecasted
       in the Constitution     (section   15, art. 8) does not
       preclude   enforcement       of the lien through user of
       equity jurisdiction.      City of Henrietta    v. Eustis,
       87 Tex. 14, 26 S.W. 619.”

             We think any apparent       claim that the State may now
have growing     out of this sale may be disposed        of with the expla-
nation that follows.     First,   that since it affirmatively     appears
that the suit was against a defendant         who was not the record
owner and that the record        owner was not made a party to the
 suit, the judgment   for the 1891 taxes was, therefore,         void and
passed no title to the State by virtue of the sale thereunder.
Second, J. B. Poindexter,       the owner in 1925, redeemed         from
the 1891 sale, whether ~timely ,or not is immaterial.           If the 1891
judgment    was void for the reasons        pointed out above, the owner
had the right to pay the delinquent        taxes for said year without
reference    to the judgment     and sale thereunder.       The Comptroller
has issued his certificate      in effect as follows:

             “In view af the above and foregoing         and in ac-
       cordance    with law governing       the redemption     of
       lands sold to the State or delinquent        for taxes, any
       sale or delinquency      to the State of Texas,     of the
       above described      real estate, for taxes for the years
       specified   herein,   or for any year or years prior to
       January 1, 1885, should be and is held for naught,
       and should in no way operate          as embarrassment       or
       encumbrance      to the title of the owner     thereof,    such
       sale or delinquencies       being hereby declared       cancel-
       ed on the records      of this office,   and said land re-
       deemed from the State for the years stated herein.”

              In any event, we would not be justified      in going behind
this certificate    of the Comptroller,      which shows the payment of
the taxes and the receipt     thereof   by the State and the relinquish-
ment of any claim of the State by virtue thereof.           The same is
binding upon us and the State.        Third,   and last, as we hereinafter
 point out in our comment      upon the 1896 sale and our former        Opin-
ion V-420, we think the 1925 redemption           by J. B. Poindexter   was
authorized     under the first part of Article     7291 and had the effect
to extinguish     any claim of the State for the 1891 taxes, even con-
                                                                                 ,




Hon. Jack C. Altarag,       Page   4 (V-647)




ceding    the validity   of the judgment.

           We consider      next the 1896 sale.    We think this is a
good place to correct     the statement    made in our Opinion V-420,
a copy of which is herewith      enclosed,   wherein  we stated cate-
gorically that Articl,e   7291, V.C.S. applied to summary       sales
and not to judicial   sales, and, therefore,    the Comptroller    would
not have authority    to cancel a sale made under judicial      process.
In this we were partly in error.

              We are of the opinion     that this statute   should   be di-
vided    into two parts, as follows:

             (1) “The owner of real estate which has been bought
in by the State for taxes, or his heirs or assigns,       may redeem
the same at any time prior to the sale thereof,        by the payment
to the collector    of the county in which such real estate is sit-
uated or to the Comptroller,      if in an unorganized   county, of the
amount designated       by the Comptroller   as due thereon with costs
of advertisement.      . .”

              (2) “And if it shall at any time appear to the satisfac-
tion of the Comptroller       that any land has been sold to the State
for taxes which have been paid, . , . he shall . . . cancel such
sale; and deliver     to the owner of the land, or his agent, a cer-
tificate   under seal of his department,     setting forth the facts
 . . . that such sale has been canceled;     which certificate    shall
release    the interest   of the State and the same may be record-
ed in the proper county as other conveyances          of real estate are
recorded.‘*

We should keep in mind that these two divisions     of Article  7291
have two separate   and distinct objects: the first applies to re-
demption   from the State where sale is made for delinquent     taxes
actually  due; and the second applies to sales erroneously     made
to the State where no taxes were due or delinquent.

            We think the first part of this statute, as indicated        a-
bove, dealing with redemption      from the State, does apply to sum-
mary sales and not to judicial     sales, except judicial      sales made
prior to 1895; and that the second part indicated         above dealing
with Sales to the State where the taxes have been previously
paid applies alike to summary       and judicial   sales.   Therefore,
our statement    in Opinion V-420 is modified       accordingly.     HOW-
ever, as pointed out in Opinion V-420, the person in that opin-
ion seeking a canc,ellation   of a judicial   sale could not qualify for
the relief  sought under said article     as he was neither an owner,
heir, or assignee.    The conclusion     reached    in Opinion V-420 may
have well rested alone upon this ground without determining             wheth-
Hen.   Jack C. Altaras,        Page    5 (V-647)



er Article 7291 applied exclusively              to summary        sales   or in part
to summary   and judicial sales.

               An explanation        is in order,       however,     for a better un-
derstanding       of the construction         we now place upon Article              7291.
As pointed out in our Opinion No, O-6277, a copy of which is
herewith     enclosed,      this article      was taken from Chapter 19, Page
31, S.S. 18th Legislature,           1883. This 1883 act amended Section 3
of the 1879 act (Sec. 3 of said 1879 act is now incorporated                          in
said Art. 7289, V.C.S.)            so that the same reads as Article                7291,
V.C.S. read at the time of the passage                   of the 1895 act providing
for the first tzime by statute for judicial                sales and as it naw reads.
As pointed out abeve, only summary                    sales were previded for by
statute in 1891; but this method of sale of real estate for delin-
quent taxes was net exclusive,               and judicial      foreclosure       and sale
thereunder      was sanctioned.           Since judicial      sales were net pro-
vided for by statute in 1991, there was, of course,                      no specific
statutary     provision      fer redemption         from such sales.          But, in
order net to deny the owner his constitutional                     right of redemp-
tian, it must be cenceded            that as to the 1891 taxes, Article              7291
afforded    a right of redemption            from judicial       as well as from
summary        sales.    This right acquired           in 1891 became vested as
of that date and could be legally               exercised     in 1925, as was done
by J. B. Poindexter,           the then owner.         However,      judicial     sales
were, specifically        provided     for by statute in 1895, and in that
act provisien       was also made for redemption                 within two years
from the date of sales made under the act. Said act kept intact,
however,      the first part of Article           7291, as indicated        above, and
obviously     was there meant to have reference                   te delinquent       tax-
payers whose lands had theretofore                   been reported        sold to the
State for taxes under summary                  sales and to judicial         sales prior
to 1895. This first judicial            sales act repealed          all laws and parts
of laws in conflict        with it, and it omitted from its provision                   the
second part of Article           7291, set cut above.           This had the effect
to leave it without change, since it is not in canflict                     with any
other proviSions         of the act.      The lg95 judicial        sales act was a-
mended in 1897, but without change as te the terms of redemp-
tion of land sold under           the terms of the act and this act also
carried    forward      the first part of Article           7291 as indicated        above,
but again without reference              to the second part of said Article
 7291. This 1897 act also repealed                all laws and parts of laws in
conflict   with its provisions.            Since the second part of Article
 7291 was not in conflict          with any of the provisions             of the lg95
act or the 1897 act, the same continued in effect,                      and must, we
think, be construed          as applying to both summary                and judicial
sales.    Simply stated, upon the inauguraticn                   of the judicial      sales
act in 1895 and its amendment                in 1897, the Legislature           intended
that thereafter       the first part of Article           7291 would apply exclu-
 sively to summary           sales and that the second part of said Article
 7291 would apply to both summary                  and judicial      sales.
Hon.   Jack C. Altaras,      Page    6 (V-647)




               From 1895 and prior       to 1929, whentke  Forty-first
Legislature,      Page 103, enacted      Article 7328a as follows:

               “That all sales of real estate made for the
        collection   of delinquent    taxes due thereon    shall
        be made only after the foreclosure         of tax lien
        securing    same has been had in a court of com-
        petent jurisdiction     in accordance   with existing
        laws governing      the foreclosure   of tax liens in
        delinquent    tax suits, ”

both summary       arid judicial  sales prevailed   under appropriate
statutory  authority.      The foregoing   first part of Article   7291
continued to afford a method of redemption           from summary
sales made by the collector        and the respective    judicial acts
afforded  a different     method of redemption     from sales made
under judicial    foreclosure.

              From the foregoing        we conclude     that the State does
not have any present         claim to the real property       here involved
by reason, of the 1891 sale, and the .redemption            certificate    of the
Comptroller       issued under the terms of Ar~ticle 7291, V.C.S. in
1925 is effective’to      release   any claim of the State to the owner.
If there Gere no delinquent         taxes owing for 1896 for which suit
was filed and sale had thereunder,           a certificate    of the Comptrol-
ler as provided       in Article   7291 will be effective     to extinguish     any
apparent     claim in behalf of the State by reason of said sale.              It
is observed      that the statute provides       for the recording      of these
certificates     in the county clerk’s     office as other conveyances
pertaining     to real estate.

                                 SUMMARY

              A delinquent     tax suit, judgment,      and sale against
        a nonowner     of real estate, and without making the
         record   owner a party to the suit, is a nullity and
        passes no title under a purchase           by the State.       In
         1891 there was no statutory        provision    authorizing
         suits to foreclose     tax liens, but foreclosure         suits
        and sales thereunder        were sanctioned.        The owner,
        his heirs or assignees        had a. right of redemption          un-
        der Art. 7291, V.C.S. from such sales.              The State
         cannot go behind the certificate         of the Comptroller
         showing the payment and receipt            of the taxes by the
         State and the redemption        thereof    by the owner, for
       ’ 1891 taxes, although not redeemed           until 1925. Re-
         lease &the     State’s claim of any interest         in the land
         is accomplished      by the Comptroller’s        certificate     of
         redemption.
. .   .


          Hon. Jack    C. Altaraa,   Page   7 (V-647)




                       The first part of Art, 7291, V.C.S., dealing
                with the redemption         from the State of real estate
                sold for delinquent       taxes, applied tr, judicial      fore-
                closure    erlss as well as summary            sales up to the
                initiation   of the judicial      sales act in 1895. Subse-
                quent to the initiation        of the judicial   sales act in
                1895, this first provision         of the statute applied only
                to summary       sales.    But the last part of said article,
                dealing with lards sold te the State in satisfaction
                of delinquent     taxes which in fact had been paid, ap-
                plies alike to judicial       and summary        sales.   The
                Comptroller      is autherieed       to cancel such a sale
                upon the records        of his office and te issue certif-
                icate showing that no taxes were due for which
                the land was sold, and the recording              of such cer-
                tificate   by the owner is evidence          of the relinquish-
                ment by the State of ar%y interest           in behalf ef the
                State in such real esGate arising           under such a sale.
                City of Henrietta       V. Eustis,     26 S.W. 619; State Mort-
                gage Corp. v. State, 17 S.W. (2d) 801; Art. 7291, V.C.S.
                Opinion No. V-420 medified.


                                                  Yours    very     truly

                                        ATTORNEY        G#JNERAL        OF TEXAS




                                        BY ?LcLL-       Aesistant

          CPL/JCP
          Ehclosures




                                               RNEY     GENERAL




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