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                   OFFICE   OF THE AlTORNEY   GENERAL   OF TEXAS
                                       AUSTIN
                                                                         ;
    G~~~~R SELLERS
                                                                   . .
    ,“&mMrr Crnr**L




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                                   Opinion Ho. O-6635       A’




LB supplemated
raquested the
rcotus1 situatloc*,
     .




the County OS IIldol,go is the owner ia trttot for the other tax-
iag waits, is lt possible for the sherlif to correot his re-
tWa in order to m&e it oollfor~ with the true facts and eon-
~QNLIwith his deed?
                                                                    .:.




            The perthat   ~ovlsiona   of Article   734sb rri   8~
**l&s   1
           %ec. 9. IT thi property be sold to auy
    taring unit uhloh is a party to the judpent
    uuder decree of Qouz% Ia aald suit, the title
    to said property shell be bid In and hold by
    the taxlag uult purrhaslng sme for the use sad
    benefit of its&X and 8l.l other tsxlng mlto
    vhich are parties to the suit acd whloh hzve
    bcea SdjUdg#d 1~ seld 2u.U t0 have    tat lfcns
    8gaiUSt 8UCh.@rOpWty, PI'0 r&A OUd In PPOpOr-
    tlon to the amuat of the tax liens in fsvor of
    said rsspeotlve tt&ug units as astabllsked by
    the $x&mat In said suit, end costs end ex-
    peasea shall not be paysble until Betle b suck
    taxiug unit 80 ~purchsasiug so,   .a,”
           The questZon hexe to be decided Is whether tho er-
rmeous return ads by the eherlf-f s!!mln# t.kt the State of
5%x1&8 WCSthe ‘purchaser at th.o foreclzisure sale vould la-
vclldhte the clear vordicti: of the sherlff~a daed thst tho
purchaser vas the Comty of X.i.dul.g~ Wdcr the ebov? quoted
provloions of .the statute.
            In the .biutri6f oltii as et al., Pm~Otlt~OtS8l'~,
                                                             et
cl., (Cl% &p.) 23 9.#. (+)ar 6!8, the &?emORt Coilrt Of Clvll
hpPe&ls stated the rule of lsv lu Texss to be 8s foZloimt
             ”..,‘~ The*vslIClty of 8 sheriff’8   shle ucd-
      OT execution or order of sale is not dependent
    . up& the rcgulsrlty      of his return.   The total
      failure to mke ths returu does not affect the
      sale.    Willis ,v. Smith, 66 Tex. 31, 17 9.W. ?47.
      Therefore, a defectlvs Peturn could not have
      that .effoct.    The failure of the sheriff to ex-
      aaute,end dellvctr~e propor and V8lZd deed, If
      In f8Ct his deed vss defeotlve,      did UOt destroy
      the purchaoer’r Interest acqufred under the 6816.
      Ulllls v. smith, 8upre.
      tr
             *IQ Hlggl.~?3v* Rwdeges (Tex. Civ. App.)
      98 Wt. 350;35?,       It w&a 8nS.d: *A valid jUdg-
      men% execution, end sale are all that is required
      to pas8 title to property sold at oxeoution sale,
              r


    &onorable D. p. HoKee, page 3


        pay&sat or purchase moc~y and facts neoeasary to
        entitle the purchaser to a &oed- being kh?Swn.
        ~laix~~ea v. Ileel, 67 Tex. 673, 4 3.~0 31~. .a,
        It has been held that a shsrlff riccy amend his
        deed, oven after’he goods out of office.   Flsm-
        ming v9 Powell, 3 Tex. ? 5’;’ 3ee .&so, Certer
        Y. ikndy (Texm CiV. Appm 7 351 3.W.  ?Tl.”
              he tbove opmon u&a r&arrlrGl      in the case of
    ryler Y. Ikndersoa (Cio. A?p.), 163 3.N. (gd) 170 (error rp-
    meed) a8 r0u0w8i-
                       It is said in 18 Tax. Jur. pa 754,
                  Wtere~ulnrity       0r the ~~~~~irr~s return
          te not essential to the validity     or a aale under
          executLoa mnd the title of the pumhascr does
          not dapend thereon.     l**   In fe3t an e&tic fafl-
          ure to z&a    ‘a return does not affest   tha sale.8
          Toe last expreoslo;r of the quotatior? Is based
          upon the hoUi%g ln%rigra       v. Eont~omcrg, 9.7X.
          Civ. App., ?? 3.F. 26 -6&i, ia which that co’&
          cited Willis v. Emith, 66 Tex. 31, 17 3.N. rS7."
                        ..
                 These eases afr¶.rm a long cstablishcd    d.wtrine rc-
    lating to the purchaser at au execution aale which was ndopt-
    ed by the’suprens Court in the case of Beady Qr Ha T. Certer
    & Boa.,     P69 3.W. 1037 (Con. App.). ~.
          :      a     As the kbotance o: tltlb bt exeou-
           t:on 0% passes upon the pmchaaerla tompllanco
           ulth his bid, the deed of the sheriff 10 pwely
                                                                          I.



           ml~sterlal,    is merely evidence of the right,                 .

            ...
              Thus it umy be seen that the equitable titla passes
    to the kctual purchaser at the execution nale irrespective     of
    the irre&ularity  la the sherZff’~s return, or in the doed it-
    self, but the deed lr. simply the lnstruiwnt perfecttng end
    venting the legal title to the poperty     so sold 1~ the actual
    purchaser at the sale.
               In %he case Bf Hol~~a, et al;,    Y. BuClraar, et al.,
t   67 ~Tex. lQ, 3 S:W. 452, it is held:
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        . xosorae.   D. Pa Hobe,   pege 4
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                       ‘5%~ purahasar’s titie at execution sale
                 under a valid judgment, the proceedings prior
                 to sale being regular, becomes perfect on the
                 exeoutlon and delivery of the deed, and cannot
                 be af’fected by any Irregularities   IR the return
                 made of the execution   by the sheriff.    The re-
                 citals In the doed, If In conflfct     mith any facts
                 stated In tho sheriffs’ return, vi11 control. 8”
                   , Raeed upon the asaumptlon that the judgments and      .
         exeautions Issued thereon were In due and lepl     folm, when
         the County of IiIdalgo purchased at foreclosure   sales tho
         various properties In questlori which were GOId   andbLdtn                c
         by the repreeeotatlve   of E!ldelgo County m&r tho provlsIoos
         of Section 9 of &tIcle     Q45b, V.A.C.S., l525, aa arznded,
         the County of IIIdal&o acquired title to the lands In ques-
         tion in trust for Itself’,   the State of Toxos and all other
         Intervening taxlag units and the sherfff would have Q right
         to socad the defective roturns made thareoa la order to
        .clafify  the recorde, although under the holdInga of the
         courts above sat forth, such proceedings would not be eo-
         seutlal to .v&lldatc the title.

                                                        Yours very truly
             .
                                                  ATTORlibN
                                                          GRNRRGOP TEXA3




         CKRrdb




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