Untitled Texas Attorney General Opinion ( 1945 )

Hon. Joseph H. Mlms
County Attorney
Midland County
Midland, Texas
Dear Sir:
Opinion No. 0-6844
Rer Procedure for'clearing
title of~present owner of
land on which an order for
sale for delinquent taxes was
issued but no deed given by
the sheriff to the State.
On September 20, 1945, you requested the opinion of
this Department upon the captioned subject, setting forth
the following facts:
"On September 18, 1908, in cause No. 377, in the
District Court of Midland County, Texas, styled The State
of Texas vs,.Unknown Owner, et al, a judgment was rendered
which found that taxes were delinquent for the years 1889,
1890, 1891, 1892, 1893, 1894, 1895, 1896, 1897, 1899, 1900,
1901, 1905 and 1904, and foreclosing the tax lien of the State
of Texas as to all named defendents and against all persons
owning or having or claiming any interest Fn the property or
any part thereof. The court further ordered foreclosure of
the lien and providing for issuance of order of sale, etc.,
and ordering application of the proceeds of sale to the
satisfaction of the judgment in the sum of $75.96.
"Afterwards, on October 31, 1908, an order of sale
issued on said property, Lots 1,,2, 3, 4, 5, 6, 7, 8, 9. 10,
11 and 12, Block 19, Original Town of Midland, Midland County,
Texas. The Sheriff never made a return on this order, but
pencilled on the face of the order is the legend 'Sold to
State Jan. 5, 1909, for $92.46, PrInterIs fee, $5.00, $97.46.’
"There was no deed given by Sheriff, nor any other
action had thereafter, in so far a8 the record shows.
"Questions:
Hon. Joseph H. Mims, page 2 (0-6844)
"1 . Does the record operate to cast cloud on the
title of the present owners?
"2 . If this question is answered in the affirmative,
can the State now proceed to dlsposses the present owners of
the land?
"3. What interest, if any, has the State by reason
of the recond?
"4 . How can the present owners clear their title
of the embarrassment of these proceedings?"
Numerous opinions previously rendered by this
Department were sent to you upon the presumption that they
sufficiently answered your inquiry; however, these opinions
were based upon the premise that a valid sale had been had
in the'proceedlngs. You have questioned whether or not a
sale was actually consummated in your case, and submitted
the following:
"In cause No. 377, referred to in my request for
opinion, the Order of Sale specified that the shertff return
the writ within 30 days, with his return thereon BhOWing
how he executed the same. In so far as the record discloses,
no return was ever made showing how the writ was disposed of.
The legend on the first page of the writ, 'Sold to State Jan.
5, 1909, for $92.46, Printers fee, $5.00, $97.46,' is not
signed by anyone. There has never been, 80 far as the record
in Midland County shows, a levy upon the land, an advertisement
of sale made, posting of notices, or return on the writ show-
ing that the land was sold to the State or to anyone else,
or a deed given."
We are of the opinion that there was a slae of
the lands under consideration. We reach this conclusion
from the notation made upon the writ, which is commonly
done in all such sales, and second, because of the judicial
policy to sustain a sheriff's sale, and the presumption
that public officers properly discharge the duties imposed
upon them. To sustant?ate the latter reason, we uote
from 18 Tex. Jur., p. 692, and 34 Tex. Jur., p. 4z2,
respectively, as follows:
"The policy of the law is to sustain a sheriff's
sale where It appears to have been fairly made. This is
beneficial to both creditor and debtor. Any other course
would, it has been observed, result in preventlng persons
from purchasing at such sales and paying anything like a
Hon. Joseph H. Mims, page 3 (0-6844)
fair consideration, and would lead generally to the sacri-
fice of all property sold under judicial process. Consequently,
a ccu-ltwill not scrutinize the incidents of a judlclal sale
with a view to defeating the proceeding; on the contrary,
every reasonable lntendment will be assumed In favor of
the sale, so as to secure, If this can be done consistently
;:;;,;e al rules, the object which was intended to be accomp-
.s
!I
. . . the law presumes, until the contrary is
shown, that every public officer will discharge the duties
imposed upon him - in other words, that he will comply
with the law. It will be presumed also, in absence of a
showing to the contrary, that an officer has as to past
conduct done his duty, and that he has acted in accordance
with the law, and within, and not in excess of, his power
and authority. . ."
In opinion No. O-6685, a aopy of which was previous-
ly sent to you, this Department held that the irregularity
of the sheriff's return or a failure to make a return
does not affect the sale; that the equitable title passes to
the actual purchaser Irrespective of the irregularities in
the sheriff's return.
Based upon the foregoing statements, the State has
an equitable title to the land in question, and can sell the
same as provided in the statutes. However, as stated in
ooinion No. o-5771, a copy of which you have, the land can
he redeemed and upon tender of the proper amount, a certi-
ficate of redemption will be issued.
Yours very truly
ATTORNEYGENERALOF TEXAS
By Robert 0. Koch
Assistant
ROK:AMM--dhs APPROVED OCT 8, 1945 APPROVED
OPINION
/s/ Carlo8 C. Ashley COMMITTEE
BY B.W.B.
FIRST ASSISTANT CHAIRMAN
ATTORNEY GENERAL