Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN
ma. Gaorge H. Shepparb
&mptrollrr of Publio Aooounta
state OS Toxaa Texas
Austin,
d*llnquent taxer taring ualt uhioh 0 tax ror8010rura tra queatlona. st for en opinion atate es r0110w8: oalpt of the icllowlng quest tax oontraotora. a. quoatioaa for this atriot iilad suit for property uul aado thb filed annwar The State UC), juwnt was bad in favor of both property war drertiaed ior sale under aold on flrat Tuesday in August, 1 diatrlot bought the property in to be t for all taring unlta. The two-year porlod for rodunptlon l xphab August 1943. By olaraight tho t0 get Out Writ Or PO8f~+88iOU Within 6uthoritlra Sailad the twenty days aa provided in Soo. 12 of Art. 7345b oi tha Ravlaod Statutea,
*Ia there any naoeaalty for writ of poss~aion iaauo whan thr proprrty ia bought in by a taxing unit?
Ron. George Ii. Sheppard, page 2
“Is there any necessity for Issuing a writ of -possession after the twenty days expires; If so, what
is the procedure, and if the writ cannot now be issued, what 1s the procedure?”
fn answer to your first quastion, we edvlse as follows :
Section 12 of Article 7345b, Vernon’s Revised civil Statutes of Texas, provldesc
“In all suits heretofore or hereafter filed, collect delinquent taxes against property, judgment in said suit shall provide for Issuance of wrlt of posses- sion within twenty (20) days after the period of redemp- tion shall have expired to the purchaser at foreclosure sale or his assigns: . . .‘I
This said provision of statutory law was enacted by the 45th Legislature In 1957, and became effective from and after Its passage. (See Acts 1957, 45th Leg., p. 1494-a, ch. 506)
Said provision is now in full force and effect. Insomuch as the said Sectlcn 12 of Article 7345b specifically directs that the “judgment in said suit shall
rovide for the issuance of writ of possession within twenty 20) days after the period of redemption shall have e:plred P the purchaser at foreclosure sale or his assigns, we assume that the trial courts follow this statutory behest and incorporate such a provision In the judgment of fore- closure. Then, with such a provision In the judgment, It 1s necessary, in order that the full terms of the judgment be obeyed, that the writ of possession shall Issue as commanded by the trisl court. The fact that the purchaser was one of the taxing units would In no way change the terms of the stat- to. There is no provision In said statute pro- ute referred viding that the writ of possession shall not Issue In the event the purchaser shsll be one of the taxing units concerned In the suit for delinquent taxes. The statute refers with equal force to all or any who may become purchasers of the property at the foreclosure sale.
non. Georie H, Shepimrd, pago
In answer to your l eoond question, we idrlao: As hrretofore state4 by us, or the the tom8 rhould folla tha statutory requlramenta as judgment thbr oontenta a? •am~r Wo must l aauaa that thr judgnrent r&erred relating to doss follow the raquiremaata of the statute
thereto, and thrrefora of418 for the laauanoe of a writ of poaseaalon within twenty (20) days after the of rederqption l xplrea. pried for oplnlon But your request $ooa not diaoloae any faota whibh make sow neoaaeary the iaauanae of a writ of poaaeaalon. Suoh a writ la in the nature of l writ of aaalatanoo, laaued by the oourta ln aid of and in enforoment of thb oourt’a jurladlotlon and the funotlon thereof la to render rffeotita the Oourtfa In a tax foraoloaure suit, it servos ju4fpent. to oust the former owner who was ths defendant in the tax foreoloaure suit, fmlp poaaeaalon OS the real prorertp in oontroveray, and to put the purohaaer at the tax foraoloaure @ale in poaaeaalon of the land bought by him at the tax foreoloaure *alo. Unless the possesalon of the land in question la refused to be surrendered to the purohaaer thereof, by the former owner of the land, we see no aae4 for a writ of poasesalon to issue. If auoh ltuation doer obtain, wa aug&eat that you take the oourt whioh ti,e ratter Up with the foreoloaure judgment. rendered
Va do not bellara that the failure to 16oue the writ of paaaeaalon within the period authorized by the and the judgment of the bout, horetoforo mntloned statute ln anyway be fatal by us, would t-0 tit10 aoqulred by the purohaaer at the tax foreoloaure aalr of the property in queeltion.
We are aware that when a deoror awarding tit14 posaraalon et land is awardrd a ohanobry oourt, that itarlf door not oporatr dlrrat deorre tltlo, but that dlvoatitWa is oomplbto when the party ontltlod to the land is put in poaaeaalon theroof. (Sea Toxaa-Xexloan Ry. Co. v.
Hon. George H. Sheppard, page L
Cahill 9 cited supra) But under the blending of law and equlty characteristic of our Texas system of jurlserudence, this doctrine would not obtain. Under our tax foreclosure procedure, as applied to the collection of taxes against real estate, the suit to foreclose the constitutional lien for taxes is primarily one in rem. (See Ball v. Carroll, 92 5. W. 1023, error refused) It has long been established that a personal judgment against the delinquent taxpayer Is not a necessary condition precedent to the foreclosure of the tax lien on the land. (See Slaughter v. City of Dallas, 103 s. w. 218)
Moreover, Article 7323, Vernon’s Revised Civil Statutes of Texas, provides:
II . . . The sheriff, in behalf of the State, shall execute a deed CONVEYING TITLE to said property when sold and paid for.”
And it is provided in Article 7330, Vernon’s Revised Civil Statutes, as follows:
“In all cases in which lands have been sold, or may be sold, for default in the payment of taxes, sheriff selling the same, or any of his successors In ‘office, shall make a deed or deeds to the purchaser or to any other person to whom the purchaser may direct deed to be made, and any such deed shall be held in any court of law or equity in this State to vest good and perfect title In the purchaser tkereof, subject to be impeached only for actual fraud.
As to the quality of title which passes to a pur- chaser cf land at a tax foreclosure sale, It is olear that as against all partie& who had an interest in the land, and who were made parties to the tax foreclosure suit, a fee simple estate passes to the purchaser free from any lien for taxes for the taxing years prior to that for which the foreclosure . was had, existing in favor of any and all taxing units which
were impleaded In or were parties to the suit In question, unless such tax lien was reserved In the judgment of fore- c losure. (See State Mortgage Co. v. State, 9 S. W. (2d) 271, 17 S. W. (2d) 801; State v. Liles, 212 S. W. 517, Ivey V.
Telchman, 201 S. W. 695, error dismissed; City of Houston
21 ma, OOOrg4 8. Shopped, pad4 thr jud@mnt es
,, Bartlett, 29 Ci+. App 27). W4 rodard aonoluslr4 aaalnst all plrtloa to the suit who wore 44n4d with prooeaa~ (Se4 Ball 1. Uarrl ton, 92 5. H. 1023). "% 50, It wee hold that the
~a4 in Orr:r~.Xllaoe 285 S. IV. l ) judemnt rar taxes, of these things, Lo., 4datenoe of tax lien (b) for8oloaure 0) proper Ceod from Oonutftsted *ad tit14 to the lsnd in pueetion. &erfff, 24 are thersiorc of the opinion thst altho the writ of POasbSSiOn was not iusuod %hloh should Jmrr aooor4anoo with and the judgment of $rsued statutes the oourt, the tax unit which puroh4s44 the land at the tar foreolosure sale took a fee slr;lpls tIt16 to the land aa against all xho were port&c to th4 bult.
in addition to our former obssrvatlons of a writ 0r posaasalon, we would oonosrnlng lsmmoc furthor point out that in Oem any person (whether rormer ownor, one In prlllty 31th thb former owner, or e etrenger to the tax foreolosurs suit) aseerts adverse poesossion or olati to the land in question a& againat the ptXrOhCs8r e.t th4 t&X fOr4OlOsUr4 s61e, s~fd purchaser oan also arsert hfs rights derived from the &aid purohase at the tar foreclosure s~Ae, by way of an sotlon of forolblc dctainer or foroible entry &ad detalner, or treapeaa try title, as need be, end as the faots my sad would thus heve aosllablo a writ of possession warraat, agslnst cny wrmgful clalmhnt to said lend or the poaaasalon thereot.