                             March   3 1, 1950


Hon. Robert Gooding                    Opinion No. V-1025.
County Attorney
Red River County                       Rep: Wife is a necessary    party to
Clarksville, Texas                          a tax foreclosure   suit, the
                                            property involved being the
                                            homestead    but the separate
                                            property of the wife and her
Dear   Mr.   Gooding:                       children by a prior marriage.

              You request the opinion of this office as to the validity
of a tax judgment,   order of sale, and tax deed to the State arising
under the’following   state of facts quoted ,from your letter:

              “I herewith’present  an actual state of facts which
       exists relative to 40 acres of land in the William   Cot-
       ton Survey and D. D.’ Bruton Survey    located in Red Riv-’
       er County, Texas.      . DD

               “In 1919 Sam Moore died leaving his wife Myrtle
       Moore and three children, Sam Moore,         Jr., Lucy Pearl
       Moore,’ now the wife of Joe Barnard, and Hazel Moore,
       now the wife of L. C. Johnson.      Some time about 192~1
       the surviving wife Myrtle Moore married F. E. Moore.
       This 40 acre tract of land was the community proper-
       ty of Sam Moore and Myrtle Moore at the time of the
       death~~of Sam Moore.     After Myrtle Moore married F.
       E. Moore they occupied and took possession          of the 40
       acre tract under such conditions as to impress          the prop-
       erty with homestead character      insofar as the interest
       of Myrtle Moore.     F. E.;Moore    thereafter   rendered the
       property for taxation purposes in his, F. E. Moore’s
       name.     The taxes became delinquent.      A suit was filed
       by the State of Texas vs. F. E. Moore to foreclose           tax
       lien on the property.    F. E. Moore    was the only party
       cited.   He did not appear and judgment was duly taken
       on April 14, 1939.    On June 3, 1941, the property was
       sold under an order of sale and was struck off to the
       State of Texas.    The sheriff’s return stated as follows:
        ‘I executed to it a deed for said lands, this the Zlst day
       of July, 1941.’ This order of sale and sheriff’s         return
       shows to have been filed the 21st day of July, 1941.           . . .

             “In briefing this matter the following points          came
       to my mind relative to this factual situation:
Hon. Robert   Goading,   Page   2 (V-1025)




             “(1) Whether or not the suit for taxes against
      F. E. Moore is binding upon the interest    of Myrtle
      Moore because the interests   of Myrtle Moore were im-
      pressed by homestead   character  and the property has
      been rendered in the name of F. E. Moore.

             “(2) Assuming   without deciding that the suit was
      binding upon Myrtle Moore,    then, in that event, .wheth-
      er or not the sale to the State of Texas on June 3, 1941,
      would have ended the liability of the Moores from pay-
      ment of taxes from that date until the present time.

             “(3) In view of the fact that the deed purportedly
      executed by the sheriff as shown by his return dated
      July 21, 1941 whether or not the period of redemption
      has ever started to run.

             “(4) And, in view of the situation now existing
      whether or not a deed properly executed by the present
      sheriff of Red River County as successor    in the office
      of the past sheriff that made the return would be valid
      and effective to start the period of redemption   running
      by his executing the deed and having the same recorded
      in the Deed Records    of Red River County.

            “(5) Whether or not upon the payment of the tax-
      es and upon the issuance of a redemption   certificate by
      the Tax Collector  of Red River County that the encum-
      brance and cloud upon the title to this property would
      be done away with.”

             Reduced     to simple   terms   your   request   presents   the fol-
lowing question:

             Is the wife a necessary    and indispensable     party to a
suit by the State to foreclose   the constitutional   and statutory   liens
for delinquent ad valorem taxes assessed        against property consti-
tuting the homestead    of the husband and wife where the homestead
property is the separate property of the wife, and her children by
a prior marriage?

              For the reasons hereinafter     stated we think the answer
to this question must be in the affirmative.       We deem it expedient
to say at the outset  that our conclusion   is not based upon any special
right or exemption enjoyed by a married woman with respect to her
separate property, in so far as its taxability is concerned,      for there
is none. Section 1, Article   VIII, Constitution    of Texas, provides as
follows:
Hon. Robert     Gooding,     Page 3 (V-.1025)                                      ,,,




                “All property in this State, whether owned by
         natural persons or, corporations    other than municipal,
         shall be taxed in, proportion to its value.‘!

There are, of coume,    certain         constitutional    and statutory    exemp-~
tions notimportant   here,

               A married woman’s property is subject to taxation.pre-
cisely    as though she were unmarried..
                :.                           <’
                The Texas Constitution fu,rther provides:

                 ‘All (landed) property o b ..shall~be  liable to sei-
         sure and sale for the payment of all taxes and penalties
         due by such delinquent;,and    . . . ~may~be sold,for the
               taxes and ,penalties due . ~ . ” (Section 15, Article;
         VIII,

                ‘The homestead      . . . shall be . ,. . protected from
         forced sale, for, the,pay.ment of all debts except for . , .
         the taxes,, due thereon.,”    (Section 50, ArtickXr

               Article     7172,   V.C.S.,   provides    in part:

               “All taxesupon  real property shall be a lien up-
         on such property until the same shall have ,been paid.”

            The foregoing  is stated in order              to make clear     the ba-
sis upon which we predicate our answer.

              Our conclusion   is based upon the premise     that under
the facts presented the judgment .of the district court in.= suit to
foreclose, the State’s constitutional. and statutory lien aga~inst the
husband alone as to the separate property of the wife, even though
it constituted the homestead,    is-,wholly ineffectual to foreclose  or
affect her r,ights. in her separate property, absent her being a par-
ty to the suit and served with citation

                In the case    of Ball v. Carroll,       92 S.W.    1023 (Tex.   Civ.
App.     1906, error ref.),    the court said:

                “The proceeding in a tax suit brought under the
         delinquent tax act is one in rem, and the object and pur-
         pose of the act is to enable the stakto  condemn,’ seize,
         and sell all lands upon which taxes are;due and ,unpaid.
         All parties owning .or claiming any interest in the ,prop-
         erty are required to be made parties ~to.the suit and to
         be served with citation, . ~ . ”
Hon. Robert    Gooding,     Page 4 (V-1025)




              Under the facts present the wife owned the fee title to
one-half of the land and her children the other half, it being com-
munity property of herself and her former deceased husband, and
upon his death intestate his community interest descended to his
children, and the wife retained her half in her own right.     The~pres-
ent husband, the sole defendant in the tax suit, owned no interest in
the fee, but merely a possessory    homestead    right. A tax suit and
judgment against him alone, without the joinder of the wife and serv-
ice of citation upon~her, is not sufficient,  under the facts presented,
to divest the title of the wife and her children by sale under the judg-
ment and to vest it in the State, the purchaser at tax sale.    This is
true for the obvious   reason that the title to the property was vested
in others not parties to the suit or served with citation in the suit.

               The Supreme Court         in an early case,     R. N. Read v. M.
A. R. Allen,    56 Tex. 182 (1882).      held as follows:

             ‘No case has been cited or has come under our
      observation   (and it is believed that no well considered
      one can be found) which makes     a judgment against the
      husband alone, and to which the wife was not otherwise
      a party, sufficient to divest her title to her separate
                                                                                       -
      property. *

            This case has not been departed from but on the con-
trary has been cited with approval in a number of subsequent cases.
In the case of Foster v. Christensen, 67 S.W.2d 246 (Tex. Comm.
App. 1934), Judge Smedley stated this rule as follows:

              “Judgment of foreclosure   and sale in a suit against
       the husband when the land is the separate property of
       the wife does not affect her title and does not estop her.
       Williamson   v. Conner, 92 Tex. 581, 50 S.W. 697; Wilson
       v. Johnson, 94 Tex. 272, 60 S.W. 242, 243.    In the opin-
       ion in the case last cited, Judge Gaines said:   ‘A judg-
       ment against him in a suit to recover property belong-
       ing to her in her own right, to which she is not a party,
       does not bind her.’ ”

               Section    3 of Article   734!ib,   V.C.S.,   specifically   provides
as follows:

              “The laws governing ordinary foreclosure     suits’
       in the District Courts of this State shall control the
       question of parties, issuance,   and service of process
       and other proceedings   in tax suits, save and except as
       herein otherwise provided.     , , . ”
.



.
_   Hon. Robert   Goading,   Page   5 (V-1025)



                  The exceptions  provided apply to those situations    where
    constructive   service is had;which   of course is not applicable   to the
    state of facts we here consider.

                  The last case cited, supra, was a foreclosure  suit in
    the district court  and the same rule would apply in reference   to nec-
    essary parties by the express terms of the statutes to the forecla-
    sure  of tax liens.

                 Since the wife was a necessary     and indispensable  par-
    ty to the State’s suit to foreclose  the tax lien securing the payment
    of the taxes, the property being her separate property even though
    it be the homestead,   the judgment,   order of sale and sheriff’s deed
    are wholly void as to the wife and children in whom the title vest-
    ed, and the State acquired no title by virtue thereof.    The husband,
    the sole defendant in the suit, had no title; hence nones passed to the
    State by its purchase.    The result is the same as though no suit had
    been filed, or judgment entered therein, in the absence of the wife
    as a party and service of process     upon her or by her voluntary ap-
    pearance in the suit.   The taxes involved in the suit are still out-
    standing as though no suit had been filed or judgment entered there-
    in.

                   Had the property here involved been the community
    property of the wife and husband or the separate property of the
    husband, then the wife would have been bound by the judgment a-
    gainst the husband and the sale thereunder without being made a
    party to the suit, and this regardless   of the fact the property is the
    homestead     of the husband and wife.  Kubena v. Hatch, 144 Tex. 627,
     193 S.W.Zd 175 (1946); Jergens v. Schiele, 61 T        255 (1884); City
    of San Antonio v. Berry, 92 T        319 48 S.W. 4;?(1898);    Cooley v.
    lvlxller, 228 S<W. 1085 (‘IYex. Czm.    App. 1921).

                Our answer to the above question renders       it unneces-
    sary for us to pass upon the other questionssubmitted       by you.


                                     SUMMARY

                 The wife is a necessary   and indispensable  party
          to a tax suit for delinquent ad valorem taxes on prop-
          erty which is the separate property of the wife regard-
          less of the fact that the property is the homestead   of
          the husband and wife. A tax suit and judgment against
          the husband alone, without the joinder of the wife and
Hon. Robert   Goading,   Page   6 (V-1025)



      citation upon her, is wholly ineffective  to divest the
      wife of her title to her separate property, even though
      the property be the homestead    of the husband and wife.

                                             Yours          very truly,

                                              PRICE DANIEL
                                             Attorney General


APPROVED:
                                             By   L?czlWD     o


W. V. Geppert                                           Assistant
Taxation Division

Charles D. Mathews
Executive Assistant




LPL/mwb
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