Untitled Texas Attorney General Opinion ( 1939 )

January 24, 1939 Honorable Charley Lockhart State Treasurer Austin, Texas Dear Mr. Lockhart: Opinion No. 189 Be: Stamp Tax on D/T presented for filing a8 muniment of title after foreclosure. You advise that long prior to the effective date of Article 7047e, Revised Civil Statutes, a deed in whtch the vendor's lien was reserved to Becure part of the purchase price was recorded In IIiaalg0County. A deed or trust on the 8eme land given a8 cumulative security at the same time was not placed of record. After Article 704% became effective the deed of trust was foreclosedby trusteels sale under the power contained in the deed 0r trust. The purchaserhas tendered the deed of trust for record, but the OolidtyClerk refuSeS to receive and record the same until the~etamptax has been paid thereon. You ask our opinion w5ether the county Clerk 1s justified in hi8 refusal. Article 70479, (a), aforesaid, reads as r0n0wi3: *Exaent as herein otherwise DXWided, there i; hereby levied end,assessed a t&& or ten cents ( O#) on each One Hundred Dollars ($100) or fraction thereof, over the first Two Hundred Dollars ()2OO),on all notee and obligation.8 secured by chattel mortgage. deed of trust, hachahid.B-lien~:oohtraot.vendor's lien. conai- tional sales contract and all instrumentsof a similar nature wnich are filed or recorded in the office of the County Clerk under the RegiS- tration Laws of this State; providing that no tax shall be levied on inetrumentsfor an amount of Two Hundred Dollare ($200) or leas, After the effective date of this Act, exoept as hereinafterDrOVidea. no instrument creating a lien of any character-tosecure the payment of money, or reserving title to any property , ,- Hon. Charley Lockhart, Janury 24, 1939, Page 2 until the purchase price thereof shall have been paid, shall be file& or recorded by any County Clerk in this State until there haq been affixed to such instrument stamps in accordancewith the provisions of this Section; and providing further that the pro- visions of this Section shall not apply to renewals or extensionsof any notes or obligations,end specificallyshall nbt apply to refundingof existing bonds or obligations. And providing further this Section shall not apply to notes end obligations or instrumentssecuring same taken by or on behalf of the United States or any corporate agency or instrumentalityof the United States Government in carrying out a governmentalpurpose as ex- pressed in any Act of the Congress of the United States". The Act makes no attempt to place a tax-on unsecured notes or obligations. The power or sale provided in the deed r‘ 'of trust having been exercised and the land sold, the note s&urea by the same has been discharged in whole or in part. If it has been paid in full, no note or obligation remains to be taxed. If any balance remains due on the note, smh balance is not secured ana is therefore not subject to the tax. If the trustee's deed pas been placed of record showing a valid sale under the power contained in the deed of trust, then it is our opinion that such deed is entitled to be recorded without being sttiped under the above statute. Yours very truly BY Glenn R. Lewis Assistant GRL:N APPROVED: ATTORNEY GENERAL OF TEXAS