     OFFICE   OF THE ATTORNEY GENERAL      OF TEXAS
                        AUSTIN




Honorable TO;P Yaay
CountJ Attorney
Potter couatf
Amarillo, Texan




                                         d eapplemntal  latter
                                         inion ot this dopart-
iaent the r0u0w                           m   faotaal Etato-
aenta, whioh we
                                             opioton x0. 1910,
                                             tat8 -~om&roalu,
                                             oh -0plniOa dealing
                                  :oa..yetl by tha lhrn*~‘s Hat-
                                  tha united sate8 or tierloa
                                 irotlon ‘or etato and oountf


                     oloalng ior'yoar osamination and in-
                      or the rollowing laatrument6t (1) Oon-
                     he Farmers Nutional Grain Corp. ~6 the
                      rernamat~ (a) Order approvin& suoh son-
                      awry Dept. or the United State8 gorem-
                 onraganoe from Farmer8 ESational War&XI80
                  to the United Statea  ~vsrrunant. {Note;
     Bar #s~prrrpxms   of the opinion requestad herain, the
     Farmera Xatlonal Grain Corp. and the Farmer6 fatLonal
     Warehou~o Gorge map be oonsldared as one and tha sama
     organleation, one being Q eubeidiary   or tha othati).
Honorable Tom iieay, Page 13



         ~Bridlf,    the f&at8 In this aa8e are a8 fO11OW8:
     On June  12, 19.956, The Farmers NatIonal Orain Corp.
     entered Into a Oontraot to oonvey to thr U. 3. govern-
     mont all oi It8 aeaet8, ruoh oonveyanoe to bo mado
     prior to Ootober 31, 1936, (See Sec. J of Xnrtrumont
     &l), and to be eubjeot to the approval of thr Soo'.
     of Trea8ury (See Sea. 19 Of 8UCh iMtrUzU.nt).        It
     eeonm that oertain minor ohanger were mado In the
     orlglnal agamtent, a8 lr ldeno ed    by ~upplemntal
     agraemmt8,   00plr8 of whloh we have sot been able to
     obtain.   However, we unduotand that ouoh aupphmnt-:
     al agreesont8 do not oontaln any provI8loari altering
     the origIna   agree.oant a8 to any of the 188ue8 to be
     dieouased herein. h8pite      the iaOt that maoh a88,t8
     wore to be transferred to the government prior to
     October 91, l@bd, it 8eema that the Secretar of the
     hOa8UI'y dib not approve thi8 agreement unti I BoIem-
     bar 7, 1986, (See Instrument #S) and that no aotual
     oonvepanoe 0r th6 speolfio property In quretfon Wa8
     made until February 84, 1937, (SW Instrum8nt #S).
     We are aoting under the a88lLoption that the ]rarmore
     National Warehouse Corp. etill retained title to
     this property on Januarg 1, lQS9, when the tat lerr wae
     made, that the governm8nt did not.hare     title at suoh
     tine, and that when the oonreyanoo Wa8 made to the
     ~oo*ormmnt in Tebruary of lOSO, it took M          8ubJeet
     to the tax lion ior t6Xe8 lMe88ed against 8ald OOrp-
     oration.   I lpight add that this property wa8 not ren-
     der86 for taxation by 8uoh oorporatlon, but that an
     arbttruy ameement       wae amde by the tax oolleotof,
     and that auoh aere88sent    we8 probably me,de after    the
     a(orunment aoquired title.      Wo do not olaim that the
     government l8 liable ror the tax88 la question, but
     do oontenb that there 1~ a lien against suoh p%Wpertf
     ror unpaid taxes for the year OS 1937.

           ?,he government Lo threatening to rile 8uit In
     Iode&     Court to clear title to this property anA
     denies that the State nnd CoUnty have a lien on
      same r0r 1981  taxe8, for two realroas, to-wit:

          "1. It is oontended that the federal governimsnt
     acquire6 equitable tltls by rlrtuo o? the oontraot to
     oonvey (Iurrtrumant #l), whleh oontraot beoam rrmt-
     ivo on approval of the Treaeury Department before
     January 1, 1937, and that even though the government
Xonorable Tom Sear, Page 3



     had laerely an oqultabla title, the property waa not
     aubjeot to tixatlon by the State and County.     (Not.:
     The U. 8. attorney ha8 agreed to turnish authorltIe8
     to the effect that property ln whloh tha tadaral gov-
     emugiant has un equitable t1tl.e ia not subjaot to tar-
     atloll).

         "2. It is rurther a0ntandad that no lien r0s 8tata
    and oountp taxra attached to this property beoause the
    tax88 in question wre not daa and payable until Qot-
    ober 1, 1991, (ii the oorporatlon had retained title),
    &ud that under our state law, no lien 18 oraated iOr
    taxes until aam8 broom du8, and that sinoa the govern-
    ment aoqulrad title in February, 1997, It aoqulred
    legal tit18 before any tax lien W68 ore&ad or attaohad
    to thir property, and that no tax lien oould b8 at-
    t;;gd to the property arter the gorernmnt aoqulred
         .

         We will, themtore,     greatly appreolate it It you
     will advise UB ELI to t&   rolloWing   matter8t

         *l. Doe8 the oontraot merked Inrtrument #l
     oonref equltablo title in thi8 property to tha
     redaral goverauaent? Ii ao, doe8 the raot that the
     governmentha8 equitable title exempt suoh property
     fcoa llabllfty ror state and oounty taxes?

         w2. At what data or time doe6 the lien tot rtata
     and oountf tam8 attach to property?

         "3. In four opinion, la there any akarlt to tha
     Sovarnsent'8 oontantlon No. 8, whloh is set out on
     Page 8. of thl8 letter?”

           The dotcralnatlon of whether or not “Inrtrument
No. 1" oonsidered in oonneotlon with *InInetrumentIlo. a*,
operate8 as a transfer, a88&MIe!lt or aonrefence t3t the aquit-
abla title to the pmperty involved,   to the United Statate or
Amuloa,   depend8 upoa tbo rule8 or oonstructlon  annouaoed by
the oowts or Texas, browse    it is a rundammtal prlnolpla
that  raal proputf  18 exolu8lvelf subjaot to tha
  orarmaut w%thln whoaa territory it la sltuat$d ii"5eF . x% .
hc.
Bonorabie Tom Leaf, Page 4



            Although legal title doea not paas to a vendee or
purchaser under a oontrctot of sale, until aotual delivery
or a deed, without retention or a vendor’s lien therein,
said vendee or pumhamer,      e8paolally where he goee Into
poaee88ion, la lnveeted with squitable title from date or
aontraat, or, ln any event, iron date ha takes poaaeaalon,
and any fnorment, advantage, or enhancement to the prop-
erty Inure8 to hi8 bendit, and detriment,dapraoIatlon,
or loss  thereto without fault of lithar party muat bo
borne by hln. 43 Tex. Jur. 3. 241, 242; 66 C. J. 702-708;
Peters Y. Clewnte, 46 Tex. 114; ke8on          v. City of fbu8toA,
(Corn.App.) 245 S.H. 485, 225 SAY. 756; DImIt Elevator Co.
Y. Garter,70 S.W. (26) f315i Ingrem v. Control Bltulithlo
co., 51 S.W. (2d) 1067; irluorth Y. Elllaon 29 S.W. (2d)
639; Willie 6: Conner Y. Turner,      25 S.W. (2J) 642s Rirer   Y.
Janeb,  9 3.W.  (2-d) Q&?;  Fullerton   Y. Sourry  CO., 14s   8.W.
971; Bled808Y. Fltt8,      105 S.W. 1142; Slaughter 0. Ooka co.,
79 S.W. 863; White Y. Cole, 29 S.W. UAS; Taylor et al v.
Barrin  et al., 127 S.W. (2d) 945.

             It 18 6180  nettled by the deofaione’ot  the Texa8
oourta and the oplnlone or thIe Department th a t,’   lxoapt In-
sofar aa the rule loay ba varied by egreeumnt batwaen tha
oontraoting    parties or by a retsntlon ot poaaaa8ion   b the
vendor, the purohaaer will ordInarlly b8 liable for a L t-8
aooruia&    atter the ueoutioa ot the oontraot where It la of
auoh a oharaoter as to oonstltute him the equitable owner
or the property.      SS ths purohoaar, titer the oontraot la
aa6e, -goes Into po8aeeelon and enJoy     the uaa o$ tha prep-
ertf, he is liable tar the taxes aCtOrUN during hlr poa8aa-
alon, notwithstanding the oontraot require8the vendor to
oonvrf by warranty doed at a tutura date.      66 C. J. 1047 -
1048; Taber Y. Stat., 86 S.W. 0Sb& Harvey Y. Provldent In-
748t0ent Co., 156 S.W. 1127; Leonard t. K8tia.U. 5 S.W. (2d)
197; Attorney General*8 opinion 0-226S.

           Thus, it iollows that ii the attached instant,
designated as Ynetruaent No. 1” is or form and eubatanoe,
tenor and erireot, to vest equitable title in the real eatate
eought to be talEed, in the Far0 Credit iadmlnletratlon on the
date thereor, to-wit, Juno 12, 1956, or,, am oontanded by the
admlnlstratlon, on November 7, 1996, the data of letter    oi
Trearury Department approving with ohaagee noted, raid oontraot,
which letter la deslguated a8 ~In8trument No. 2-, than 8uOh
real estate would not be 8ubjeot to State end OO~tf     ad Valor-
em taxes tar the year 1937; beoauee, the equitable a8 aontra-
diatlngufshed from the legal title, being eubjeot to aase68-
mnt for taxes, and said equitable title vesting In en avowed
Honorable Tom Jeay, Y&g8 5



instrunentality or agency 01 the Federal Government, prior
to January 1, 1937, there wouid probably arise an ianunity
fros &ate and county taxation under the Constitution of
the United states and iirtlcle 7150, Revised Civil titatutes
                           corU6rrlag eteqtion upon land
of Texas, 1925, exjmererrsly
owned by the Fader-61 government.

           However, we do not find it necessary in this
opinion to detemlne the preoim question of whether ma1
estato, to which the United %&tern hea equitablr but not
legal title on January 1st of any tax year, is aubjeot to
state and oounty ad vaiorea taxes for that year; bsoause
we are aoniinoed that nInotr~nt    No. I”, whether oonaidered
alone or in oonnectlon with Qmtrament    Ho. 2" does not
operate to vest equitable title to the land in question in
tha United 3tates prior to January 1, 1937, bu%, on the
aontrary, both legal and equitable title on said date rostod
in tha Faraera Xctional Grain Corporation, 80 am to be aob-
joot to Stats and oounty ad ralomm taxes for ths year 1937.

           To riaoh this oonoluslon it is neoeeeary to oon-
ridor qIwtruaant Ho .  1 ”in itslntlr ety a ndfr o m
                                                   its fo ur
oorneca. H4no4, it la our deelm the3 aaid l.artrumont mnaln
aa au attaohed lxhibtt to this opinion and oowlderea as a
part hor4of, booauso it is too,lon@hy   to ba oopiad h4so5,n
rorbat lm. Howovor, we deem it neorseary to rsfer  to and
sometimes quote   pertinent portiona oi said Instrument.

           La sscticn~.theroor it is 4tat4d that th4 offer or
transfer by the Faramra Rational Grain Oorporation (herein-
after rerormd to aa the Corporation) to the Farm Cmdlt
Administration (heroinafter referrod to a8 AdPliniUtratioa)
in payment of or to relleva itself of liabllltisr as OS June
SO, 1936, oontemplatsa the transfer of awsta and the reloaee
of debts of the aubsidiarlcs ae well as the Corporation, ex-
oept suoh asoets as am expmesly reeervsd.

          Section 2 provides thet all aots under the ooa-
traot shall be SrSorcted on or before October 31. 1930, but
shall be nade efi”aotlve as of the olose OS busLnesa oa June
30, 1936, and the books of the Corporation and the Qat4rmla-
atioa of prorits au6 lose44 therbirom shall be aa of that
date.

          section   9 atipulatea, in part, as follows:
Honorable Tom Saay, Pago 6



                XB of the close of buaimao on June 30
     l036,"k    aotually on or prior to Ootobsr 31, l&b,
     the Corporation shall transfer all of its aasota
     hold June 30, 1936, or th4 proo44aa theroof, lx o o p t
     for assets retained as her4lnafter provided, to tha
     Mralalatratlon, or as ordorod by the Admlaletration,
     and the Uminiatration   shall thereupon 04no41 or N-
     lI.4~4 the Corporation of all obligations of any M-
     ture whatooarer of the Corporation to the Admlal8tra-
     tion except obligations erldencrd by notaa or doou-
     meats bearing date on or aftor June 13, 1938, and ox-
     oopt obllgatloaa Sor rhloh the Gorporatloa 8hal.l ooa-
     tinua to bs liable under the t4rma of this Agr4aDmAt.~

           Section 4 provides that th4 Gorporatlon shall re-
 tain and oontinue to be liable for the payaoat of oortaln
 daacrlbtd asaeta held and owned by the Corporation at the
 oloae or buaia484 oa June 30, 1936, at a dotormlr#d prlO4,
 uuong whloh aaaste wem drafts for oollootLoa, aoaoanta r4-
 oelvable, depoelte, adYancea on grain, lnv4ntoriaa Of grain,
 aood, oto., norships    ln aommodity exohangoa, offloo turni-
,ture, rlrturie and automobiles, insureno oontraota, end
 open gralo.contracts, spot or tuturoa.

          soctlon 5 provides tar th4 retontloa by tha Corp-
oratloa of oortaln deaoribed property, laoludlw oertiln real
e&ate,  at the option either of the Atlmlai8tration o¶?the
Corporation, expreeaea in writing before Ootobor 31, 1936.

            Section 6 provides for the leaelng by the Adfalala-
tratioa at the option of the Corporation, of oortala gropor-
ties owaod by the Corporation Sor a period OS oaa y4ar Oom-
nwnolng July 1, 1936, with an optloa of ronawal for a further
period of oaa year on terms and oonditioaa to \M agreed upon
aad with an option to pur~hesa+     xaoludoain thi8 property
era certain aouutrg elovatora aad 8o.m nlnoteoo ternriaal aud
eubtorminal   sl4ratore located  in Terse, Oklahooma, Ohio, IO-
bra&m,   Illinois, Kansas, Ylnneaota, Iowa, Waehlngton and
North Dakota.
Honorable Tom   Sony, Fogs 7



           section 7 providee that the Corporation, In addl-
tion to the lIabllitiea acoruing after June 30, 1936, shall
oontlnuo to be liablr and in due oourse pay the balanooa due
at June 30, 1936, on All of its lIabllltlas at that date,
inoluding the indebtrdnarce to the AdminIstratloa, whleh ahell
bo roduord by the aggragato amount of oertaIn deaorlbed ltoma,
Ineludlng not.46 and grain drafts paynbla, cuetomre*   oradit
ba~anoos, aooounta peyable, aocruod grain handling ahargo
payable, aooruedllablllty for tame on aeeets retained, and
llabillty on olaiaia end open grain ooatraota. AA amount was
fixed ior roaor?oa, and it was agrood that if all llabllItlee
ror whioh roaervea are set up are not soonor settled,then
col~vlanolngwith the year 1937, the CorporatIoa shall oa
July 31 of laoh year, pay to the Saoratary or the Treasury,
ao muoh of the roaemea,   If AAJT, as are no longer raqulrod
to meet the maxImum liability of the Corporation for llabll-
It&esnot yet eettlea.

           section 8 provides that In addition to the.amount
the Corporation will owe to the United &ate8 of rmerioa on
aooouut of faoilltIea retained by it, the Corporation shell
on or before Ootobrr 31, 1936, pay to the Secretary of the
Treasury aa amount equal to the value of alI aseeta rotaSnod
by it under paragraph 4;9saa the sum of all llabllitio8       whloh
are herein provided. to be paid by the Corporation Ander~ pare-
graph 7, and all raaervoa provided, or #2,500,000., whloihar
amount &all bo gmatar.      dootfon 0 prorldaa that  “the Ad-
mInlatratlon ahall on or before October 31, 1936, loan to the
Corporation, ror worklag oapltal, an amount equal to the dif-
fstent$e between the amount paid the Secretary of the Troaaury
under the romgoiag 8ootlon aad $E,500,000., plus auoh addition-
al amxtnte, if any, ae may bo aooesaar     to brlAg the total
working capital of the Corporation   to s 6,GOO,OOO., as of fun4
30, 19S6,4 tha amount loAnsed to bo lvlaoaaod by a new noto sf
the &%rporatIon, dated June 30, 1936, payable quarterlr, the
unpaid principal  bahxe    on ouch new note to finally mature
on June 30, 1946; to eocure said note a new FundingAgreemoat
is provldod for,  dated as of June 30, 1936, to euporaede the
present funding agreement but alm.l.larthereto, and providing
that upon default in payment of’ Interest or prinoipal,    the
AdmiAiatrutIoa ehell hare the right without notioe to acoel-
erato the maturity of the entire lndebtednees.
Honorable Tom deaf, Page 8




          Section 10 provide4 that the Corporation ahall
on or b4for4 Ootob4r 31, 19116, oau44 it4 original 4took-
holder4 to oontrlbut4 at 14a4t $3,000,000.00 to the capital
stook of surplur, aooount of th4 Corporation, ths pr44mt
outetandlng rtook and new 4tock to b4 allooated arid 18eued
on a b4el4 prorid4A therein.

          Loans to etook holders for th4 puroh484 Or 4uah
4took are proribed by S4otion 11 from the A~i6tratiOn,
MA prorleion 14 m4d4 for the lxeoutloa end peymnt of
notes therefor iaaturlw as late a4 1946.

          Seotlon 12 provides  that ths Corporation shall.
retain one-eighth oenf per bunhe out or the marketing
proaeede or grain up to end lnoludiog fun4 30, 1936g one-
fourth osnt per bunhe to and lnolading fun4 30, 194Oi end
one-hall cent per buehel to and inaludlng June 30, 1946, ~14
retain8 to be addltlonel oollatsral for the note4 of the
regional4 to the.gMnl4ttatlon,    with sp44lflo prorlelon~
for the applioation of 4uoh payments.

          Seotion 14   mvld44   that the AddniStratiOn   will
loen the CorporationP3,000,000.00,evrfdenoeii
                                           by no840 ma-
tUdll6 Jtdy 51, 1939, to be paid from the $3,OO0,000.00    re-
oelted from its regional atoakholder4.

           84otlon 13 provide4 that the Umlnlatratlon    ahall,
a4 proqtly a4 porslbla and in 6114 00~~44, re4ommnA     to th4
Seantary or Treasury the 84oeptenoe by him of .th4 eettl4iwnt
and roarraugrmnt    of fh4 lnAebtadne44 of the Corporation, n44-
eseary w a4 to permlt    rlnal perroreanoe of 4ll of the act4
provided to be performs4 in thl4 agreenmnt, a4 of the 4lo4r
of bueine44 on June 30, 1936, but eotually on or before Oof-
ober 31, 1936, exoept a4 to aooounting end any aAj@4tnmnt4
thet may be neoeeeery in oonneotlon therewith and any other
obligation4 or undertakings   whloh by their term4 extend b4-
food that date. 8eotion 16 prorid      that the llablllty on
Oapital stook oontrlbutlone au4 note thueon    shall oaly br-
00144 erreotioemh4n   the approval or the Seoretary of the
Trea4ury is obtained, and SacMon 19 provider that the <allure
of stookholdsrs to aontribute to the oapitel end 4urpltts
eaoounts ahell, et the election of tha &lmInistratlon, e%-
cellerrite the wturlty of all sxfeting inAebteAnee4 to the
AArainl6tratlon.
Honorable 'porn
              seal, Page 9




           Yeotlon 18 contain8 the agr44ment of the Corp-
oration that Vrom the date hareor to and inoludlng the Aete
that this agreement beoomee exeouted, as oontraeted rlth
being rxroutory’  ft 1~111oonduot its affairs In an erriof-
lnt buelneee-like manner and ~111 meke no ootemitm4nte or
Aiepoeition of aeeete other than in the ueoal 40~~04 of
business, without having first  obtained the written ooneent
0r th4 AAminietration.

            We here thus eumaerizeA the salient featuree or
the  contract, dreigneted wInetruawnt No. l*, not broauw
they are germme to any questIOn Of tax liability b4for4
us, but rather, to demonstrate that it is not an lxeoutory
eontra4t of e&l4 of land, of the ordinary and u&al form
and eubet(UIoe, euoh as lnrol~4A in th4 Aealelons olted a-
bore, but on the oontrary is a detailed and Oompapnhmeive
eettlsmsnt crgr4e;arntbetween the Farmers National Grain
Corporation   end the Farm Crsdlt id.mlnietratlon, whereby
the fleoal and finaubial afralre of the Corporation er4
m&late4     and rehabilitated.   The lnetrument has ror Its
lubjeot metter property from th+tPenhenAle to the Dakotas,
and obligations ranging from the date thereof to 1946. It
eont4apl4t45   that the Corporation shall aontlnur es a go-
ing oonoun, in full p05548510n anb control of the proper-
ties and assets, reel, pueonel and mixed, all end eingular.
The nel estate ln oontrorerey her4 AeeorlbeA in the formal
deed of oonreyanoe between th4 part145 on February 24, 19S7,
AeelgnetaA as aInetrum4nt No. g ," Is not enywher4 mentioned
or AeeorlbeA in this oontreot. If lneluA4A, It 18 4mbraoeA
in the general term8 waeeete brld Sun4 30, 1936" whioh It
Is oontemplated by Seotlon S, shell be tranmfierred    in re-
lief of outein    obllgetlone owing to the AAmlnletration.

          We hive found no euthoritlee in thle State (and
many ar4 existent upon tha general eubjeot)  whloh hold Al-
rsctly, or by reasonable analogy, that equitable title to
real estate would pass to a rend44 or purohaeer under any
such oontraot or agresm4nt as the on4 Aesoribed ebOT4.
Without eroepCion, the oaeee Ofted ebooe and holding that
equitable title to land would test in a vendee under en
exeoutory oontract or eale, turn upon faotual eltuat5.one
                                                                   611



 iionorable Tom Seay, Page 10




wherein the puroheeer or Tend44went into imaediate poeaee-
elon or the land, either under a deed, with retantlon or tha
venAor*a lien, rwhioh, in lffeot, is the 8-e as an lx e o a       to r y
oontraot of sale. insofar a8 title 18 0onuerneA). or under 5




 whereby equltj regards that as done whioh ought to be dohe,
 the vendor held legal title In trust for   the Tendee, and the
 vender be14 the purohaee eioney ln truet for the vendor.   &oh
 a oontract of sale, while ternd executory, 1s rer Alfferent
 from the wholly ueoutory oontraot or eettlenmnt agrroment
 In the Instant oaer, lmbraolng the entire fle4e1 set-up of
 the Corporation, with future  oondltlone and oontlngenolee,
 and oontemplatlng that poeeeealon   of the property be not
 forthwith rsllnquldmd   to the alleged  rend44 but remelt with
‘the alleged vendor.

           It le -such a oontract as the Comleelon of AppeaZe
 wee epeaKlng about in the Ohm of Sendereon T. Sandereon, 109
 S.W. (24) 744, at page ~748;

             -. . .DefurAant in error takes the porritlon
      that the rules govuning suite for epeolflo perfor-
      nun04 ha*4 no applloation to the eulf vhloh, she
      submits, is ror the reooruy      or the ,proputy In
      virtue   or squftablr   title given hrr by the oontraot.
      Tim authorltlre     relied upon 4r4 there holding that
      the vendee ln the ordinarf     lxeautory atntreot for
      the sale of real eetate aoquiree     at the Oh    the
      eontraot is exeouted the equitable title to the
      property, eubjoot to lien securing the pur4haee
      prlae. Tompkins v. Broooka (TeX. Clv. ~pp.) 45
      S.W. 70, (applloation for writ of mror nfueed);
      Ruaeell end 2WefalA v. Kirkbride, 63 Tex. 436.
      Thin ohange In the beneflolal title results from
      the applioatlon of the Aodtrine of equitable oon-
      version,   equity regarding as done that whloh ought
      to be done.     Poemroy's Bqnlty 3urlepruAenor (4th
      &A.) TOl. 1, # 108, pp. 117-119; a 368, pp. 688,
      686. But the Aootrlne of equitable       oonverrrlon la
      not applicable to a oontra4t like that here under
      oonsideration. Upon the rxeoutlon of thle oontraot
      normthing other then the paymnt or money remelned
Honombla Toa day, Peg4 11



     to be done. The p4reonal eervlaee yet to be
     rendered by We. Sendereonthmughout   the re-
     rmrlndsror ‘&a. K4lton'elife oould not b4 r4-
     garde4 a4 perrorsmdat the exeoutlon of the
     oontraot . The ageement eontemplate the re-
     tentlonby A&e. Keltonof the full title to the
     property until her death. Under euoh oontraot         (
     the equitabletitle 4r right te th4 property
     would not peer poti Mrs. K41ton1edeath. . .*
           Again, In the oaee of Gosrle t* Burgess, et al.,
l;eo S.W. (24) 988, the Oomalu~lonoi Appeals,   in oon4tm-
w3   a oontraot or agreezumt*oh   etronmr  thur   th4 lastant
on4 for the applloatlon of the rule of equitable oonvuelon
statedabove, h414 that neitherthe leg41 nor   - l
                                                - ouitrhla
                                                  l_-_-_-_
title passed thereby, In the following lan&u age I
          (at   page 990)
          "We anewu the first queatloa5.nthe
    afrlrm4tire. The eontraoteet out 18 N.aia-
    ly only an eueutory   agreementto esnri*    It
    15 not a 4ontraat or sale. It passe6 n4lthG
    the legalnor the rqultabh title. It 4045
    not even reel84 that  the r4nAer h4d agreed
    to sell aatll one hn3.fof the agroodpurehaee
    money was paid, at whleh time he was to 424-
    oat4 a14 44liTrr a elliilOl4& deed, *&rating
    end oonveyla# the property to the r4nA44. It
    1s olmr that no rqultabletitle was to rest
    unti1.hal.f  the ~noneywa8 paid. lweau44,   in
    0484 or 44faultprior te that time, thm paymnte
    were to be forfeit& as llqulA4teAAemg48,
    ann,e oontraetwould be of no form and
              This appearsto hare bemn the prao-
    tloal ketructlon whloh th4 partlee'thomeelvtre
    ph44d upon th4 eontraot,    for it is lh4n4 that
    Jermoa tinally   abandonedthe pr~puty     end turned
    it baok to burgeee: no 444A ever hevln6 been
    AellvueA.a (Emphaeleours)
                                                                     L-m.-




                                                               613




Konorable Tom deey, Page 13




            Theretort we say that the aontract or agree-
ment, AeelgueteA aa wInatrumnt No. 1," is, at meet, only
anLx40utory    agreement to 40nvey, and not a oontraot of
        Being dependent or oonAltlonal upon some eontln-
gene; or future aot of .the   partlee, end oontemplatlng
that poeereelon or end Aomlnlon end control over the
property remeln with the Corporation, rather than the
kdmlnlatratlon, it does not pass equitable title to the
&im.inietratiOn. Nor le this effected by WInetrwa4nf No.
glW whloh la a mere letter of approval, with ohengee
noteA, of this oompromlee or settlement agreeant by the
tieoretary of the Treasury. Legal title to oortaln dr-
scribed property rested in the Farm Credit AAmlnlstratlon
on February 24, 1937, by virtue    of lxeoutlon of the form-
al deed of.oonveyanoe, without rrtrntlon of rendor~e lien,
byethe Corporation.     But prior thereto, both legel am!
equitable title rested ln the Oorporatlon, eo as to make
it personally liable for etute and aounty ad TelOMm
taxes for the year 1937. The Fara Credit Administration
is not pereonallr    liable ror euoh~taue.   Maters v. In&e-
pendent Sohool District of chant, eo8 8.01. S74, Childreee
Oounty T. State, 137 Texas, 343, 93 S.W. (3A) loll.

          Thle oonelaelon requlrer  oonelduation of your
second end third questlone regarding the effeotlre date of
aoorual of the State and oounty aA talomatax    lien opm
the land eon~eyed, ror taxes for th4 peer 1931. If eald
lien brome fixed upon the real estate in question as of
January 1, 1937, then the Farm Credit Adminirrtration would
take luuh property on February g4, 1937, nubJrot to said
lien but without any personal llal$llty for eald texee.
On the other hand, it this tax lien 414 not beoolsr a
oharge upon the property until the aeoreement of the taxes,
or, as 4ontenAeA by the Govunment, until euoh taxer should
beooma Au4 and payable on Oatob4r 1, 1937, th4n no lien
would exist to 840~~4 these taxes, beoaoee legal title ~
vested ln the United states, through ite agenaire,  admlt-
tedly prior to these dates and 000ur%?45044, dth a 4oneo-
quent lmmnlty.    In the latter lnetauoe, only a pereunal
llablllty would rest upon the lrermerte #atlonal Wein
Corporation for the 1997 taxes.
kionoreble Tos 6eay, Page 13




          xrtlole 8, section 16, Conetltutlon or T4xae.
provides ror the rollowing lien:

           *The annual aseeee:>ent ma44 upon lenA4A
     property shnll be a epeoiaf lien thereon; and
     all property, both real and p4reona1, belonging
     to any delinquent  taxpayer 4hell be liable to
     seizure and sale ror the payment of all the tax-
     es end panaltlee due by euoh delinquent; and such
     property nay be sold for the paymnt of the taxes
     and psnaltlee Au4 by such delinquent, under euoh
     regulation8 a4 the Legielature &my prOTlA4.~
      (jSmpheele Ours)

          ArtiOle 7172, RevleeA Civil Statutes of Texas,
1925, la Aealaratory of this oonetltutlonal lien, and
prov1488:

           "All taxes upon real property shall be a
     lien upon euoh property until the earn4 shall
     have been paid. end should the aeeeeec~ fall
     to ee4eee any real estate ror any on4 or more
     years, the lien shall be good for every y4ar
     that he should fall to aeeeee for; and he'may,
     in llatlng property ror tax48 any year there-
     atter, aeeeee all the beok tuee due thereon,
     aocordlng to the provisions of this title."

          &tlolo  7151, K.C.8. of Texas, 1923, proTlA4e
in pert as roilowe:

           *All property shall be listed for taxa-
     tion between January 1 and April 3(i of eaoh
     year, when required by the ameasor,   with r4f-
      erenoe to the quantity h414 or own44 on the
     .flret day of January in the year for whloh the
      property le required to be lleteA or rendaml."

          No eyeoiflo tlrue being fixed in the Constitution
or 4tututae ror the attaohment of the ad valorem tax lien
on land, resort muet be ha6 to oeee law for the 4OlUtlOn
or thle oontrolllng faot.
Honorable   Tom Seay,   Page 14




           The curly o&se of Cruger v. Clnzuth, 3 Willson, Tex.
ir. Clv. Cas. Section 24, under oonstitutlonhl and etatutory
provlslons  substantially similar  to the ones now govsrnlng,
ha16 a8 follows with rererenoe to the time for the aoorual
of this lien:


          RUnquestloneblp under th@ provisiona or the
     laws olted, appellant, being the owner of the land
     on the 1st day or January, l&32, was liable person-
     ally for the tars6 thereon Zor that year, though t&e
     amount of suoh taxes wa8 to be subsequently asoer-
     talned, and though oolleotion oould not be made
     thereof before October; for the law expresely pro-
     vides that the taxes shall be oharges against the
     person owning the property on January 1st. From
     thle it follows that appellee Mnnuth was not lla-
     ble personally for the said taxes, he not having
     beooma the owner of the land until after January 1,
     1222. This being true,   we think the lien provid&d
     by the Constltutlon attaohee at the time the lla-
     blllty 1s rlxed by the statute,  and la an lnoumbranoe
     upon the land though the amount or the taxes 18 not
     then fixed an d determined. . . .

          Under our eystem the tax is levied on the 1st
     day of January of laoh year, and the assessment 1s
     made as of that date, although the rendering or
     listing and valuatlon ot the property 18 in fact
     subsequently made.   The evtdenoe ln thls aase shows
     that the etate and oounty taxes wsre an lnoumbranoe
     upon the land when oonveyed by appellant."

           This deolelon is followed in the oase of Carswell
& Co.mpany '1. Habberzsttle, 87 3.W. 911, wherein the court
said:

         "All property owned by a person in this state
     on the 1st day or January cruet be lleted ror taxe-
     tion between that date and June 1st of eaoh year;
     ad, notwlthatandlng tho taxes do not bsooa due
     until the 1st day of October following, he is
     personally liable for the taxes. of that year, though
     he sells~the property before the amount of euoh
Honorable Tom Seay, Page 16




    taxes has been ascertained, an4 before the paysent
    thereof becomes due. Ii not paid on or before
    the 31st day of January of the suooeedlng yesr,
    a penalty of 10 per oent on the entire ampunt of
    suoh taxes aoorues. To meoure the payment of
    taxes and penalties, the Constitution provldee
    that ‘the annual assessment made upon landed
    property shall be a speolal lien thereon, and
    aLl property, both real end personal, belong-
    ing to any delinquent taxpayer shall be liable
    to seizure and sale for the pay;;lentof all the
    taxes an4 penalties 4ue by such 4eiinquent.’
    Article 8, 1 15.    This lien attaohes and ths
    taxes beoome an lnoumbranoe on the land from
    the date llablllty is fixed on the owner, which
    1s the 1st bay of January oi the year, although
    the aluount of said taxes is not fixed and de-
    termined until txolas tirW subsequent thereto.  It
    tollows that the tax88 due by apjellee@s lntest-
    ate for the year 1900 on the land sold aypellsnts
    were an lnoumbranoe on said land when oonveyed,
    and remained suoh until paid off by them, ln June,
    1901. Cruger v. Cinnuth, 3 Allison, Clv. Car.
    Ct. App. 1 84; Almy v. Hunt, #S Ill. 451 Rundell
    v. Lakey, 40 N.Y. 614.’

          In the oase of Sate v. Barmer, 59 S.W. 541, the
8uprems Court of Texas, ln construing this constitutional
lien held, at first view, oontrary to the above deolslons,
in stating:
          “The state olalao no personal llablllty on the
     part of the detsndant,  Farmer, for the taxes, but
     asserts that Farmer bought it subieot to the tax
     lien on the state, and seeks to onforoe the llen
     upon the land itself. Artiole 7, I 15, 0r the
     oonstitutlon reads as follows:     *The annual assees-
     ment made upon landed property shall be a spealal
     llan thsreon, and all property, both real and personal,
     belonging to any delinquent taxpayer shall bo liable
     to seizure an4 sale for the pay.xent of all the taxes
     and penalties due by suoh delinquent ; end suah prop-
     erty may be sold for the payment of the taxes and
     penalties 411s by such delinquent,   under suoh regu-
     lation as the legislature may provide.’ The lien of
     the state, under the provisions of the Constitution,
Honorable Tom Seay, Page 16




     arfses out or the assessment of the property,
     an4 does not exist until that assessment Is
     made. It 1s the assessment made annually by
     the offloers of the state, un4er and in aooord-
     anoe with the law, which holds a lien upon the
     land. The word ‘assessment,’ as here used, evl-
     dently means the sum wbloh has been ascertained
     as the apportioned part of the tax to be charge6
     against the partloular pleoe of property; but
     under our oonstitutlon, an4 the provisions of
     our statute, the word embraces more than s,lmply
     the amount, and inoludes the procedure on the
     part of the offlolals by whloh the property is
     listed,valued, and finally the pro rata de-
     olared. Clegg v. State, 42 Tex. 610; . . .v

           However, the ‘issue before the court in State
.v. Farmer, supra, was the exlstenoe of this lien, under
 an assessment, invalid because of a defeotlve desorlDtlon
 of property, rather than the time for the attaohment-of
 suoh liens. Therefore, we 4o not believe the quote4 1
 uage shouf4 be extended to mean that the lien does not?:-
 taoh until such t&w as all ttatutory duties of the assess-
 or are performed and the anmunt of the tax rlna.lly oomputed.
 The oourt was merely holding that.8 lawful and valid assess-
 ment was a prerequisite to the existence of a lien but was
 not passing upon the time for the aoorual thereof. That it
 was not the intention of the Suprems Court to overthrow the
 deolslons hereinabove discussed, holding that the lien at-
 taohes as of January 1st of the tax year, rather than on.
 the date of the aotual vassesament,w 1s lodloated by the
 approved judgment of the Commlsslon of Appeals ln the oaso
 of ~lsslon Independent Sohool District, et al v. Al?UstrOng,
 222 S.K. 201, wherein sol4 oases were olted with approval,
 in determining the time of attaohment of the lien to se-
 oure taxes of an independent sohool district.

          It 1s our oplnlon’that the Farm Credit Admlnlstra-
tlon did not eoGuire title to the land in question, either
legal or equitable until February 24, 1987, and that said
property was oharged with an4 subjeot to a oonstltutlonal
lien to secure state and oounty a4 valorem taxes for the
year 1937; an4 that said lien attached on January 1, 1937,
Honorable Tom tieay, Page 17




despite the foot that the assessment of such taxes was made
subsequent to the aoquisltlon of title by the Farm credit
Admlnlstratlon and did not beoome due an4 payable until
Ootober 1, 1937.
          Trusting the foregoing fully snarers your lnqulr-
lea, ws are

                                Yours very truly
                           Al'TORNfsyQENmL   OF T&ICAS


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