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OFFICE OF THE AlTORNEY GENERAL OF TEXAS
AUSTIN
;
G~~~~R SELLERS
. .
,“&mMrr Crnr**L
.
Opinion Ho. O-6635 A’
LB supplemated
raquested the
rcotus1 situatloc*,
.
the County OS IIldol,go is the owner ia trttot for the other tax-
iag waits, is lt possible for the sherlif to correot his re-
tWa in order to m&e it oollfor~ with the true facts and eon-
~QNLIwith his deed?
.:.
The perthat ~ovlsiona of Article 734sb rri 8~
**l&s 1
%ec. 9. IT thi property be sold to auy
taring unit uhloh is a party to the judpent
uuder decree of Qouz% Ia aald suit, the title
to said property shell be bid In and hold by
the taxlag uult purrhaslng sme for the use sad
benefit of its&X and 8l.l other tsxlng mlto
vhich are parties to the suit acd whloh hzve
bcea SdjUdg#d 1~ seld 2u.U t0 have tat lfcns
8gaiUSt 8UCh.@rOpWty, PI'0 r&A OUd In PPOpOr-
tlon to the amuat of the tax liens in fsvor of
said rsspeotlve tt&ug units as astabllsked by
the $x&mat In said suit, end costs end ex-
peasea shall not be paysble until Betle b suck
taxiug unit 80 ~purchsasiug so, .a,”
The questZon hexe to be decided Is whether tho er-
rmeous return ads by the eherlf-f s!!mln# t.kt the State of
5%x1&8 WCSthe ‘purchaser at th.o foreclzisure sale vould la-
vclldhte the clear vordicti: of the sherlff~a daed thst tho
purchaser vas the Comty of X.i.dul.g~ Wdcr the ebov? quoted
provloions of .the statute.
In the .biutri6f oltii as et al., Pm~Otlt~OtS8l'~,
et
cl., (Cl% &p.) 23 9.#. (+)ar 6!8, the &?emORt Coilrt Of Clvll
hpPe&ls stated the rule of lsv lu Texss to be 8s foZloimt
”..,‘~ The*vslIClty of 8 sheriff’8 shle ucd-
OT execution or order of sale is not dependent
. up& the rcgulsrlty of his return. The total
failure to mke ths returu does not affect the
sale. Willis ,v. Smith, 66 Tex. 31, 17 9.W. ?47.
Therefore, a defectlvs Peturn could not have
that .effoct. The failure of the sheriff to ex-
aaute,end dellvctr~e propor and V8lZd deed, If
In f8Ct his deed vss defeotlve, did UOt destroy
the purchaoer’r Interest acqufred under the 6816.
Ulllls v. smith, 8upre.
tr
*IQ Hlggl.~?3v* Rwdeges (Tex. Civ. App.)
98 Wt. 350;35?, It w&a 8nS.d: *A valid jUdg-
men% execution, end sale are all that is required
to pas8 title to property sold at oxeoution sale,
r
&onorable D. p. HoKee, page 3
pay&sat or purchase moc~y and facts neoeasary to
entitle the purchaser to a &oed- being kh?Swn.
~laix~~ea v. Ileel, 67 Tex. 673, 4 3.~0 31~. .a,
It has been held that a shsrlff riccy amend his
deed, oven after’he goods out of office. Flsm-
ming v9 Powell, 3 Tex. ? 5’;’ 3ee .&so, Certer
Y. ikndy (Texm CiV. Appm 7 351 3.W. ?Tl.”
he tbove opmon u&a r&arrlrGl in the case of
ryler Y. Ikndersoa (Cio. A?p.), 163 3.N. (gd) 170 (error rp-
meed) a8 r0u0w8i-
It is said in 18 Tax. Jur. pa 754,
Wtere~ulnrity 0r the ~~~~~irr~s return
te not essential to the validity or a aale under
executLoa mnd the title of the pumhascr does
not dapend thereon. l** In fe3t an e&tic fafl-
ure to z&a ‘a return does not affest tha sale.8
Toe last expreoslo;r of the quotatior? Is based
upon the hoUi%g ln%rigra v. Eont~omcrg, 9.7X.
Civ. App., ?? 3.F. 26 -6&i, ia which that co’&
cited Willis v. Emith, 66 Tex. 31, 17 3.N. rS7."
..
These eases afr¶.rm a long cstablishcd d.wtrine rc-
lating to the purchaser at au execution aale which was ndopt-
ed by the’suprens Court in the case of Beady Qr Ha T. Certer
& Boa., P69 3.W. 1037 (Con. App.). ~.
: a As the kbotance o: tltlb bt exeou-
t:on 0% passes upon the pmchaaerla tompllanco
ulth his bid, the deed of the sheriff 10 pwely
I.
ml~sterlal, is merely evidence of the right, .
...
Thus it umy be seen that the equitable titla passes
to the kctual purchaser at the execution nale irrespective of
the irre&ularity la the sherZff’~s return, or in the doed it-
self, but the deed lr. simply the lnstruiwnt perfecttng end
venting the legal title to the poperty so sold 1~ the actual
purchaser at the sale.
In %he case Bf Hol~~a, et al;, Y. BuClraar, et al.,
t 67 ~Tex. lQ, 3 S:W. 452, it is held:
,
. xosorae. D. Pa Hobe, pege 4
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‘5%~ purahasar’s titie at execution sale
under a valid judgment, the proceedings prior
to sale being regular, becomes perfect on the
exeoutlon and delivery of the deed, and cannot
be af’fected by any Irregularities IR the return
made of the execution by the sheriff. The re-
citals In the doed, If In conflfct mith any facts
stated In tho sheriffs’ return, vi11 control. 8”
, Raeed upon the asaumptlon that the judgments and .
exeautions Issued thereon were In due and lepl folm, when
the County of IiIdalgo purchased at foreclosure sales tho
various properties In questlori which were GOId andbLdtn c
by the repreeeotatlve of E!ldelgo County m&r tho provlsIoos
of Section 9 of &tIcle Q45b, V.A.C.S., l525, aa arznded,
the County of IIIdal&o acquired title to the lands In ques-
tion in trust for Itself’, the State of Toxos and all other
Intervening taxlag units and the sherfff would have Q right
to socad the defective roturns made thareoa la order to
.clafify the recorde, although under the holdInga of the
courts above sat forth, such proceedings would not be eo-
seutlal to .v&lldatc the title.
Yours very truly
.
ATTORlibN
GRNRRGOP TEXA3
CKRrdb
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Untitled Texas Attorney General Opinion
Combined Opinion