Untitled Texas Attorney General Opinion ( 1947 )

PRICE DANIEL October 29, 1947 Honorable Ceorgc H. Sheppard Comptroller of Public Accounts Austin, Texas Opinion No. V-k20 Re: Authority of the Comptroller to is- sue, under Arti- cles 729;eg;f;308, V.C.S.$ cates of cancella- tion of sales to the State of prop- erty sold in tax foreclosure pro- ceedings. Dear Sir: Your O)IAIOA requost dated October 8, 1947, ir a8 follouo:, eI am enclosing letter and file from Mr, Thurman L, Mulhollan, Lampasas, Taxas, in which ho requests this department to MA- : ccl a firlltSolo to certain property iA,tho town of hnpasas made in 1911 and issue P * cartlficatd of relinquishment as the law provides, "Since this department is undecided a8 to the validity of the judgment entered against this property in 1911 and the of- ficer's return reporting sale of tht prop- erty aentioned, I shall thank you to advise me the proper reply to make to Mr, Mulhol- lan's letter," In order to make clear the full import of JOUr request, it is necessary to quote the letter of Mr. Thurman L. Mulhollan,,Attornay, to you under date Of October A, 1947, which is as follows: "Pursuant to the provisions of Arti- cles 7291 and 7308, VernonOs Toxas Civil .- , Honorable ~GeorgeH. Sheppard, Page 2 Statutes, request is here made for the can- cellation of a certain tax sale of Lots Nos. 7, 8, and 9, in block go. 15e of the Matthews & Wilkes Addition to the town of Lampasas, Lampasas county, Texas, held by virtue of a certain judgment, rendered in the District Court of Lampasas county, Texas, on the 11th day of April, 1911, in Cause No. 2808, styled, The State of Texas vs The Unknown Owner or Owners. (Said judgment is shown in the State- ment of Facts, hereto attached, on page 02.) Upon which judgment an order of sale was is- sued, upon which the sheriff of Lampasas made his return thereon on June 6, 1911, reciting that the lands and premises were struck off to the State of Texas. (said Return is shown on page 03 of the Statement of fact) "It is believed that the sale is irreg- ular in the following particulars, to-wit: "(1) The last record owners, in fact no record owners, were not cited in said suit the defendants were merely designated as pfhe Unknown Owner or Owners,' "(2) The pdp ent does not contain the recital that t e efendants were even cited as required by law. "(3) The Officer"6 Return merely states that the lands and premises were struck off to the State of Texas; no deed to the state appears of record and none b%>,thereports, required by law to be made to 'the commis- sionerws court, or to the tax assessor and collector of said county appears to have been made. This fact is strongly borne out by the fact that the tax collector continued to carry this property on his rolls as $Un- known' or 'Unrendered'. "As favoring the cancellation of said sale, on September 22, 19448 the State of Texas, for itself and Lampasas County to- ether with the City of ,Lampasasand eampasas fndependent School District as impleaded de- fendant taxing units, brought another suit for taxes on said identical property, citing Honorable George H0 ~Sheppard,Page 3 to ia8t record owners thereof at I,,P..Ws Smith and wife, M&o IMO the piarchsom of raid Lot@ 'Md 9, fA block 15 of tho Uatthows idditlonto tho town of Lampaaas, iounty,Toxaao ThO jUd@ltOAtiA thi8 tthorwith ita.aubse.queAt ordor of U-8 iA the St4ithlOAt Of Facts 811 lad,lO. -The righta ef A0 thlrJ,)rrtyha born’ injostod iAto,tho aitXlat$@AboWo@n tho tiAo of the,firat sale and the laat aPlop "The urohaaor.s at the laat'sale 'that la' P. wo !Lith pnd tifo Mattie Smith both acdod iA good faith in t&O purOha00 of'aald 1Pnde at aaid eale. -I~the overt,said first sale is ,ca~- celled by your office; the purchasersBf tho second sale would have succeeded to the pocli- tlon of the last'rocordowner of said lpnd, to-wit: J, B, Freeman. eTherefore,It is requested t&t, iA the interests of justice, that the,firat sale should be caAcellcdand a CertPflcate of re- linquisbmontbe issued out of your office, a8 the lawprovides, to the succeodiAgpartfee to the last record owners. What over costs, intenet and taxes might be due by virtue of the canaellation of aaid aale will bo paid upon receipt of notice of the PmouAt theroofow Your request is reduced to the simple prop@&- tion of your authority to issue a certificateof cancel- lation as requested by MpO Mulhollan of the sale in a tax foreclosure suit in the District Court of Lampasas County in Cause No, 2808, styled The State of Texas v. The Uaihovm Owner or Owners, in 1911, wherein the Stat0 became the purchaser, Mr. Mulhollan citea Ilrticlee'7291 and 7308, V.CoS., as your authority,for compliancewith, his request. These articles of the statute roepectlvely provide: Honorable George h. Sheppard, Page 4 --. 7291 Art. _ _ "Tnb Owner OS real estate which been boueht in bv the State for taxes. oy his heirs or assigns, m v redeem the same t anv time orior to thi sale thereof, by The vavment to the collector of the county I hi h such real estate is situated tz FheCComptroller, if in an unorgani:ez county, of the amount designated by the Comptroller as due thereon with costs of advertisement; and if it shall at any time appear to the satisfaction of the Comptrol- ler that any land has been sold to the State for taxes which have been paid, or that the sale has not been made in accordance with the law authorizing the sale of land for taxes, he shall upon the payment of the amount that may be due thereon, cancel such sale; and deliver to the owner of the land, or his agent, a certifieete under seal of his department, setting forth the fact that such land has been redeemed, OP that such sale has been cancelled; which certificate shall release the interest of the State and the same may be recorded in the proper coun- ty as other conveyances of real estate are recorded," "The tax collector shall, prior to the sale of any real estate that has been previously bid off to the State at tax sales, the owners of which have failed to redeem the same, advertise the real estate to be sold in some newspaper published in the county for six successive weeks, if there be such newspaper published therein, otherwise he shall post advertisements of said sale at the courthouse door and at one public place in each justice's precinct of his county for at least six weeks, giving in said advertisement, whether published or posted, such description of the lands to be sold as shall be given on the Comptrol- lergs list, and stating the time, place and terms of sale, which shall be between legal hours on the first Tuesday of some specified month at the courthouse door at public Out- cry, to the highest bidder for cash; provided Honorable George H, Sheppard, Page 5 that no real estate shall in any case be sold for 18s~ than the amount designated by the Comptroller as due thereon, together with all coats of advertisements and sale gwner of anv such real estate. his e county, of the nated by the Comptroller as due thereon, with costs of advertisement. If it shall at any time appear to the satisfaction of the Comp- troller that any land has been sold to the State for tax86 which have been paid, or that the sale has not been made in accordance with the law authorizing the sale of land for taxes, he ohall, upon the payment of the amount,that may be due thereon, cancel such sale; and in all cases he shall deliver to the owner of the land, or his agent, a certificate under the seal of his department, setting forth the fact that such land has been redeemed, or that such sale has been canceled, which certificate shall release the interest of the State, and the same may be recorded in the proper county as other conveyances of real estate are recerded.,” (Emphasis supplied) These statutes have reference only to summary sales by the Tax Collector authorized at the time of their passage and have no reference to judicial sales, as is the case here, Hence, if we should hold that the sale under Cause No, 2808, in 1911, is void for lack of proper service or for the other matters suggested by Mr. Mulhel- lan--a question we need not and do not decide--it would not aid Mr, Smith, the purchaser at the tax sale in 1944 of the same property in whose behalf MrO Mulhollan de- sires a certificate of cancellation, This for the sir- ple reason that the statutes relied upon b him are not applicable to judicial sales. Moreover 1: the statutes were applicable to judicial sales, stflf Mr, Smith could get no relief from them, for they a terns to the owner of real estate w in b the State for taxes, or his heirs or assigns. tiO is neither an owner, an heir or assignee as speef- Smitiii fied fn Article 7291 nor a former owne`` or heir or PS- signee as specified in Article 7308, These statutes clearly refer to the owner or former owner of the real . . Honorable George Ho Sheppard, Page 6 eotate at the time sale is made to the State. Ml-0 Smltli, the purchaser at the tax sale of the same property in the 1944 suit, cannot by any reasonable construction be auoh an owner or former owner0 The foregoing is sufficient to show that you have no authority to ccmply with Mr. Mulhollan's request in behalf of his client, and you are ac,cordlngly80 ad- vised. The Comptroller has no authority by virtue of Artlcles 7291 and 7308 V.C,S. to issue a certificate of cancelfation 0P sale of property bought in b the State at tax foreclosure sale, as suaz articles ap- pl to summary sales but not to judicial sa1 es, The purchaser at a subsequent sale of the same property in a tax foreclosure suit is neither an owner, a former owner, an heir or assignee as provided in said statutes. Very truly yours ATTORNEY GENERAL OF TEXAS By -a - L PT P, Lo lar Assistant LPL/JCP/erc APPROVED: