rnoeipt'or your letter of &woh 89, I.940, ln~~hleh you re2u4st am opiaion:ef this depnrtmsnt 0~ tha following question aontalned thermin: .

?Vfhan a mortgagor ropomronm48 8 rotor To-.- tiol0 (holding pc~amw~i4n tharsor a8 a trustee) may bhe mortgaagoo (truStee) aaL the rehielo to hinrself es a I;rirata purokumor and thus ao-,uiro ownarshlp or the rebiele aad bearme entitled to a Certlllcate or Title agaknst then vcrhioleVa This d~puxtmuit ruled in Opinion No. O-1984,.that uhsre a mortgagee repostmsao8 u motor vahiole and sells the same et a private sale, whioh procedure Is in eoeerdaao~ with the terms ef the mortgage, Four departmmt is author- ized to lesus 0 Certifioata 0r Title in the 011110 0r the pur- ohaaer at suoh ;u4vate ioreolosurs s61e. In your question here you are conca~nrrd with the oituatfon #hero the mort- e&se hlmielt purahams the -ptopexty et such private roru- closure sale and applies for B Certificate of Title in his *2 Eouoreble Hoiuer Garrison, Jr., ?age S

own name.

In our Opinion No. 4 vie pointed out that the right to foreolose by private Bale la oontraotual and that suoh a provision oontained in a mortgage ie not against public policy. In line with thie authorltles iuthie state hold that where under the term of a martgage the uortgagee 18 permitted to be a purchaser at a sale oonduoted by hl~U under the power of private sale contained thereiu that auoh l?rovision is not against public polioy and 1s not void. The SUPremS Court of Texas in the oase or The Hoards T. m~ls, 6 Ter. 173, held that the mortgagee muId be a purclhaser at a sale oonduoted under the power or sale oontained in the mortgaage. This rule of Law was again announced by the Suprams Court in the oa6e of Soott v. Xanu, 33 Tex. 786, To the sama dr4hti a44 the 0888 of Goodgame v. Rueh+g, 36 TAX. 7e3, by the supreme Court or Texae.

It is to be note& that the&e old Supreme Court oa~e&~ reoognize that a mortgagee may purchase at a rorealoeure sale aonduoted under the power of sale eoutaided~l.nthe mrtgage. ID each of those oases, however, It ia mntcsplated thatthe 8ale conducted nil.I be a public and open one. The rule as to the ri&d or the mortgaagee to purohaee would or ueoesslty have to be extended to a puraimae at private sale beoause he acts h.exaotlp the Saae uapaoity under the law ln selling property.at a private foreoloeure 8ale as he does at publlo roreolomre sale, each of whioh la Ifade.uuler the ,terme of the power ol,saIe aontaiued 5.a the mortgage. The rule Is stated in 5 B. C. L. 490 as tollorsr

Yt is generally recognized that the mort- gagea rmy purchase at the oale with the oonaeut or the mortgagor given orally or In the mart- gage itself. It ha8 been ruled that a mortgagee nray purohase the mortgaged ohattels, even iu the absence 0r 4X5W488 ooneent b the mortpfor, Onl{ where the aale is oonduoted 1 XI good ia,t and no iu fraud or the rights of the mortgagor. . . .v Iu the 0886 0r Davenport 0. San Antonio Mailaohfae a supply co., 59 S. W. tea) 807, the an m0ni0 GOU* 0r civil AppeaIs'held that a corpcmatlon in which the mrtga@e va8 a atookholder oould purehaae at a publio sale made ander the pcwer or sale oontainea in the mortgage.

Tha oaBe whioh oomea nearer to covering the question you ask thau any other 16 the ease of GampbeII v. Eaateru Seed

iicnorable Earner GBrrlson, Jr., Pug4 ^[3] 6, GitSlR CO., 109 S. Vi. (Zd) 997. ln,thia case the mortegse repoaseaasd the yroperty and made a yrlvate sala without sotioe to the mortgagor cud the aortgaeee was the purolessr at such givate *do. .Ths &en @onlo Of Clvll Appeals Cowt sustained the ea&e and stated as icllower

*It was exprsssly providsb in the mcft- the mortgages nsad nat &ve notice gge that of the exeroise of Its option to forealcse, but ens authorized to sell at public or private sale in *Rayaondvllle, or elsov&ere, UlthOUt deaund ror. yerrormanos*; there was no reguimuuent, ex- ;rreeu or by nac~ssary i5pllC6tiOn, thatnotics of Intention to .sell be given the mcrtgngor prior to sale. It was provided in the mortgage that the mortgegee 'nay purchase at auoh sale in tie onms rammer, and to the baas eifeot, es any per- eon not interested hers&a.*

*The rule goverslng sales under roreeloauro upon perscual property 18 that the power to rore- 0106s through ssle8, other than under court crder', is pursly contraotual. 0 Tex. fur. p. 189 Su~seo. 05." ,It is the oplnlor~ of thin departsect, therefore, that where the mortpgs by its torah allows the sortga&ee tc bedome a purchaser et e priveta foreclosure sale that he may In ,the foreolosurs 80 purchase the reposssasod property. under the terse of a 5ortMe it is neoossarp that the ssm be striotly ccsplled with. Thla is the holding ct the Corn- aiseion of Appeals of Texas in the aase of Piramen*s Fucd Insurance Cc. v. Wleon, ES4 S. pi. 980. The Court held that in CL case whem sele wa8 s&a under the ten&s of the scrt- gage end such tenss were not colrplied with the same was void cud thet the p9roheser ao%ut~rod uo ri&ts either ~~~~~~ equlteblo in the property by meana of the sale.

advised, however, thet In aaee the tams of the mortgage are oom,72ied with end under the ;nort$aye the aort~;oges 1% eutaorlsed to be a purchaser that ho mey so purchasle the yroperty and set legal tit.10 to the name, nnd you would be authorized to iesue a Certificate of Title la such slortgapgee'e 116LIpe. Certainly an express yrovislon in the aortgage suah a8 was oonteinad in the mort&age in the Cs5pbel.l caseto the sffeot that the mortgagee dould be ths purohane: at the private 'foreclosure sale oould be sutfioiont to autt;orlze his pur- ohme of' the motox vst.iale of such sals. 6n the other hand, if the mortgage was silent on this prcpcsitioo, but merely provided th;st the raortgagee 05~14 sell the property at a *4 piivate esle, it is cur opinion that l2.e ecurts would say in sac.9 a ease that it was conLem;,lated btitween the jzaarticla ti; the mortgage thst th? sale would be mada to a'third zarty not th(l mortgagae. In suck a ease the sale by the aortgagee t.4 iils!aelf would be V4IU. AS tc ghethar or sot Other word- ing of a testicular mortgage is s\ich tin to ahw the parties reasonably 6onteapla~t.U that the mortgage6 might jmrohase at the private aals wo.Al depend in each ua6e 00 the language used.

Tkle'rals OS lmw was ahaouhced Ln the cram of Clark v. Ztudebaker Corporation or America, 171 K. k. 608, a8 fol- lows:

-.. . . Ths mortgage by its terms &ave the moftgagee the right to take poansseion of tha mwtgaged oar and aoll it at private sale with- out riotice, and also provided t&t the mortgagee could beowe ttie purebe~nr at such asle. It ro1- lnws th--1; ii the mortgagee or an agent of the mprt- gag**, or anyone also), bought it at:auoh uale, the sale would be valid and the purchaser would get a '. ~good title. ~. . .*

Far your further lhfor-matioa we call your attontlon to the ~mse of Tidslity Union Fire iaSuv@fkCe CO. v. BallW- gattsrfield Co., 10 9. 3. (Zd) 165. in this cam the plain- tiff aold a motor vnhiele t4 an indlvldual named Barber. Bar? bat then sxscuted aartaln natea eeoursd by e mortgage to the The plaintifr en- AutOiQObiha Fi.n6IlCs COar~Sny Of ~lVeOtOn. uossed and 'guarantaed tbe jmymeat or raid notee to saSd fl- name company. Thereafter Barber defaulted in~the payment of 5ome of the notas and the finance comyony though its agent took possession of ths oar and by private sale aol~d t&c same to the xlaintitf. ;cn holding 5uOt; a sale valid, ths Court etated aa followa:

"Tha ckattel mortgeage whioh Barber em- outed uutharized tha mortgagee in ease of do- fault to repossess tx c:r and sell it at pub- mie 00iirt*5 rinsings in- lic or prlvatpr nc4l.e. cori;orafed in the ju:gmunt dro to the affect that the sale wss privetaiy made in accordance with t&s ternr, or t&e snO~qp3. The avidezma laustefm this finUi~&, and tha legal effect of tke sale waa to Yeat a~pollws with the sole and unc4adltional title to the yroperty." *5 You zra, thorafota, sdrrfsed that In sUoh a situ+ tio3 your dspartaknt wR4uli' b 6uthorlzsd tu laaue 6 Cartlfi- cate ot Title fwi tha ziotor in the name of the plrctmser Y-fdcls at suei: t~orerloaure sale.

Your8 vary truly OF TE&&S