Honorable David McNelll, Jr.
County Attorney
Shelby County
Center, Texas
Dear Sir: Opinion No. O-6277
Ret Procedure to be followed
in rtdtemlng land sold to
the State for delln Uent
taxes in the year 11 56,
and related questions.
We acknowledge receipt of your recent letter request-
ing our opinion upon the above captioned matter. Your letter
reads as follows:
“The deed records of Panola County, Texas, Volume E,
Page 394, show that Elisha Williams, assessor of Panel?
County during the year 1856, levied on several tracts of
land among which was 98 acres of the Bailey Anderson
Survey lying East of the Sablne River for State and
County taxes assessed for the year 1854 against Samuel
McFaddln q There being no bidders at the public sale of
said lands, the said Elisha Wllllams bid off the same for
the State of Texas by bidding thtrefor the amount Of
taxes due thereon and costs of sale, and executed a deed
conveying said lands,to the State of Texas on July 26,
1,856,which deed rec’ltedthat in accordance with law and
after notice of such sale had been given more than 30
days before the date of sale by advertising In writing
posted at the Courthouse door and at two other public
places in said County, naming said piss.
“The records do not show that the said Elisha Wll-
liams or any of his succtssors in office have executed a
deed to the said 98 acres of land to any one since that
date.
‘Hon. Qeo. H. Sheppard has advised that the records
of his office reveal that this property was levied on
Honorable David McNelll, Jr. - page 2 (o-6277)
and sold to the State as set forth above, and that no
redemption receipt has been issued, or any action has
been taken In regard to the sale. Therefore, there
remains a valid charge against said land, according to
Mr. Sheppard.
"Articles 7288-7291, Inclusive, and Articles 73o6-
7318, inclusive, of the Revised Civil Statutes of Texas
deal with this type of proposition, but they are not clear
to the writer as to the exact procedure te follow to per-
fect title to this 98 acres.
"(1) Please advise the exact steps to be taken by
the present owntr of the land tm clear his title to the
98 acres. (2) What Interest dmes the State of Texas
claim Is said 98 acres? (3) Could the State Comptrol-
ler issue proper redemption'certificate upon payment of
all taxes and costs? (4) Could the County Tax Collector
make proper deed to present land Owner upon payment Qf
taxes and costs?
"Under Article 7290 If such lands have not been
redeemed as provided In Article 7289, then the same may be
sold as provided In Article 7288. (5) What does this
mean? (6) How would the State sell the land? (7) a
whom?
"In Vol. 40 of Texas Jurisprudence at the top 0r
Page 223, I find 'Where land had been sold off to the
State of Texas for taxes assessed subsequently to Decem-
ber 31, 1876, the owner having failed to redeem, SUM
land might be reoffered for sale by the collector On
receipt of a list from the Comptroller.' The land under
investigation was sold off to the State of ,Texas in 1856.
(8) What effect does thishave?
"I am assuming that the'aale by said Elisha Williams
was In strict conformity with the laws exlatlng as of the
date of sale. However, I note that the deed recites that
notice was posted at the courthouse and two other public
places In the County. (9) Did the law zulre posting at
p
the Courthouse and three other ubllc
does today? (10) If so, and notices were posted only at
two places except the Courthouse, what effect would that
have on the deed to the State of Texas?"
Your letter propounds ten separate questions for our
Honorable David McNclll, Jr. - page 3 (0-6277)
opinion and you will note that In your letter, as quoted above,
we have numbered said questions for convenience from (1) to
(10)> and have underscored each question. We will first answer
your questions and then present a review of the various statutes
we think are applicable and our reasons and authorities for our
answers.
Answer to Question No. 1: The present owner, If he
Is either an heir. lenal representat,lveorasaianee of the owner
of the tract of land in question at the time of-the sale In the
year 1856, can at this time redeem said land from the State by
paying to the Tax Collector of Panola County, Texas, an amount
of money equal to the amount of the 1854 tax, together with all
costs, penalties and interest now required by law, and also the
payment of all taxes, Interest, penalties and costs on or
against said lands since December 31, 1919.
Answer to Question No. 2: The State of Texas has the
title to said tract of land, subjec,tto the right of redemption
which may be exercised at any time before the State of Texas
makes a sale of said tract to a third party.
Answer to Queation No. 3: Upon payment as provided
for in above answer to Question No. 1, it will be the duty of
the Comptroller,to Issue to the owner-of said tract of land a
proper redemption certificate, which the owner may place of
record in the deed,records of Panola County.
Answer to Question No. 4: The County Tax Collector
has no authority to execute a deed to,present land owner upon
payment of taxes and coats (aee recent opinion of Justice 0. C.
Funderburk, Court of Civil Appeals of the Eastland District in
Cause No. 2473, styled H. D. Dennis, et al, v. 0. H. Little;
not yet reported.)
Answer to Question No. 5: Articles 7288, 7289, and
7290 as codified and brought forward In Vernon's Annotated
Revised Statuteswere taken from fanAct of the 16th Legisla-
ture, 1879, p. 36. Article 4759 of said -1879Act Is now
Article 7288 of Vernon's Annotated Civil Statutes; Article
4759a of said 1879 Act is now Article 7289 of V. A. C. S.;
Article 4759b of said 1879 Act reads as follows:.
'?n case said land shall not have been,redeemed
as provided in Article 4759a, then the same'may be
sold as provided by an Act entitled 'an Actto provide
for the sale of all real estate bid off to the State
Honorable David McNelll, Jr. - page 4 (o-6277)
by Collectors of taxes at tax sales, the owners of
which have not redeemed the same," approved April
7, 1879."
The Act referred to above, approved April 7, 1879,
is found in General Laws of Texas, 1879 to 1885, Chapter 70,
pa 79, and Sets. 1, 2 and 3 which provide for a second sale
have been brought forward by the codifiers In Articles 7306,
7307 and 7308, V. A. C. S. Evidently, the codifier in having
Article 7290 to read as follows:
"In case said land shall not have been redeemed
as provided in Article 728gh then the same may be sold
as provided in Article 7288 ,
intended it to read as folloWs:
"In case said land shall not have been redeemed
as provided In Article 7289, then the same may be
sold as provided in Articles 7306, 7307 and 7308."
Otherwise, Article 7290 does not make sense and Is meanlinglessO
Answer to Question No. 6: The State would sell the
land under Article 7290 as provided for In Articles 7306, 7307
and 7308.
Answer to Question No. 7: The Tax CoJlector would
make the sale as provided by Article 7308.
Answer to Question No. 8: As the land In question
was sold to the State prior to December 31, 1876, we are of
the opinion that Article 7306 of the Revised Statutes of 1925
from which the writers of Volume 40, Texas Jurisprudence were
quoting, at the top of p0 223 Is not applicable.
Answer to Question No. 9: The law did not require
posting of the notices at the Courthouse and three other pub-
ilc places In the year 1856, but only at the Courthouse and
two other public places.
-
AnBWer to QUeStiOn No. 10: Our answer to above Ques-
tion No. 9 obviates the necessity of our answering your question
No. 10.
In our recent Opinion No. 0-6173, we held that the
Legislature in prescri'binga two year redemption period, did not
Honorable David McNeill, Jr. - page 5 (0-6277)
do so for the purpose of setting a date beyond which redemption
may~not be had but that this period was established to insure
the original owner that he possesses an absolute right of re-
demption during such two year period and that during such period
the State will not interfere with such right by selling the
land to a third person. In other words, this Opinion held that
the original owner would have a vested right to redeem his land
from the State even after the two year redemption period at
any time before the State actually exercised its right,by
making a sale to a third person. We are enclosing a copy of
said Opinion No. o-6173 for your lnfor.mation.
Article 5187, Paschal's Digest, Laws of Texas, Vol. 1,
p. 877 (Act of February 11, 1850) provides in part as follows:
%very Assessor and Collector of taxes shall give
notice of the time and place of sale of property so
levied on, at least thirty days previous to the day
of sale, by advertisement in writing, to be posted up,
one on the Courthouse door of his county!,and in -two
other public places in his county; . . .
Article 5204, Paschal's Digest, Laws of Texas; Vol. 1,
p0 880 (Act of February 9, 1854) reads as follows:.
"When any land or tenement shall be advertised
for sale by the Assessor and Collector of Taxes, for
any taxes accruing to the State, and such lands or
tenements cannot be sold for the want of bidders,
it shall be the duty of the Assessor and Collector
to bid off the same for the State, for the amount of
taxes due; and such lands may be redeemed within two
years from the date of sale, by the owner or owners,
or some other person for him, paying the amount of
taxes, and one hundred percentum thereon, together
with the costs of sale. When property has been sold
for the taxes of any year, and purchased by the
State, and remained unredeemed such property shall
not be again assessed or sold for the taxes of any
succeeding year; but on the redemption of said pro-
perty by the owner, he shall be required to pay the
'taxeswhich~would have accrued on said property; for
each successive year, as though the same had been
regularly assessed." (Underscoring ours)
The Legislature in the years 1856, 1858, 1860, 1863
and at various times since have passed legislation extending
Honorable David McNeill, Jr. - page 6 (o-6277)
the time by which former owners might redeem lands that had
been sold for taxes and purchased by the State, and each of
said acts provide for various terms and conditions upon which
the land owner might redeem. A careful examination of Vernon"5
Annotated Civil Statute5 discloses that none of these Acts have
been brought forward and Incorporated In the 1925 revision, ex-
cept those brought forward In Articles 7289, 7291, and '7340,
V. A. C. 9.
Article 7289 ‘1.A. C. S., was brought forward from
Acts 1879, S. S, p. 36; and reads as follow5:
"The owner of any lands that may have been conveyed
to the State under the provisions of the foregoing article,
or his agent, desiring to redeem the same, may do so by
depositing with the collector of the county in which ,the
lands were sold double the amount of the purehase money
,and all accrued taxes thereon, within two years from the
date of the deed to the State; and such collector shall
execute a receipt to such owner, or agents, giving there-
in the amount of money received, and a description of the
land so as to identify the same, and sign and seal the
same officially; and, upon presentation of such receipt
to the Comptroller, he shall execute to the owner a
relinquishment under his signature and seal of office,
which may be admitted to record in like manner with other
conveyances of land."
It will be noted that this article provides practically
the same terms and conditions of redemption as Article 5204,
Paschal's Digest (supra).
Article 7291, V. A. C. S., according to Vernon25 Com-
pilation shows to have come from the same source as Article
7289, V. A. C. S., vfz. from Acts 187g,.S. 9. p. 36. However,
an examination of said 1879 Act discloses this to be an error,
Article 7291, V. A. C. 5. was taken from Chapter XIX, p0 31,
9. 9. of the 18th Leg., 1883. This 1883 Act amended Section
3 of said 1879 Act (Sectfon 3 of said 1879 act is now lneor-
porated in said Article 7289, V. A. C. S.) so that same read
as Article 7291, V. A. C. S., now reads. Article 7291, V. A.
c. s., reads as follows:
WThe owner of real estate which has been bought in
by the State for taxes, or his heirs or assigns, may
redeem the same at any time prior to the sale thereof,
by the payment to the collector of the county in which
Hczorabie David McNelll, Jr. - page 7 (o-6277)
s,&?hreal estate 15 situated, or to the Comptroller,
if in an unorganized county, of the amount deslgna-
ted by ths Comptroller as due thereon with costs of
adver'tisement;land if It shall at any time appear to
the aatisfactfon of the Comptroller thatany land
has been sold to the State for taxes which have be1E.n
paid, or that the sale has not been made in aecor-
dance with the law authorizing the sale of land for
taxes, he shall upon the payment of the amount that
may be due thereon, cancel suoh sale3 and deliver to
the owner of the land, OP his agent, a certificate
uWer seal of his department, setting'forth the fact
th,atsu.ohland has been redeemed, or that such sale
has ken cancelled; which certificate shall release
the fnterest of the State and the samk may be,recor-
ded fn the proper county as other conveyances of real
e&ate are recorded."
Inasmuch as the provisions of Artiole 7289 and 7291
are in canfllct, and the Legislature in 1883 in effect repealed
Section 3 of the 1879 Act (whlah Is now Article 7289, V. A. C. 9.)
by amending same 50 that it read as our present Article 7291,
V. A. C. S., it is our opinion that Article 7291 should oontrol
ever*Article 7289, notwithstanding the fact that the 1925 codl-
ffers brought both the 1879 provisions and the provisions of
1883, that amEnded same, int.0the 1925 codification. Our opin-
ioz that ArthZe 7291 controls over Article 7289 15 further
strexgtkicmed 'bythe fast that Article 7289 15 limited by its own
terms toWsale made "under the provisions of the preceding
ar.k'-'inle
0 This Act was passed In 1879. The sale in question
'wasmsdc I,nthe year 1856g and was not made "under the provisions
cf tk preaeding Article.
The other redemption Article aboVe~ referred to is
Art :Fc:;;e V, A. C. 9. This Article Is a later expression of
7340,
the Lsgd.slat;ore
and read8 as follows:
%here land5 or lots shall hereafter be sold to the
State or to any city or town for taxes under decree of court
1.nany suft or suits brought for the aolleotlon of taxes
thereon OP by a collector of taxes, or otherwise, the
owner or any one having an Interest In such land5 or
SX%S shall have the right at any time within two years
Fran the date of sale to redeem the same upon payment
c; the amount of taxes for which sale was made,
,tcget,her
with all costs and penalties required by law,
ard skso payment of all taxes; interest, penalties and
Honorable David McMelll, Jr. - page 8 (0-6277)
costs on or against said land or lots at the tlme of
the redemption. Acts 1897, p. 132, Sec. 14; Alzts
p. 323; Acts 1907, p. 282; Acts 2nd C. S. 1909,
go? 00; Acts 1st c. 3. 1913, p. 25; Acts 1st c. s.
1915, p* 58; Aots 4th C. S. 1918, p. 155; Acts 3rd
c. s. 1920, p. 103*
It wfXIbe noted that this Article 7340 la llmlted by
its own terms to lands that shall hereafter be sold to the State,
etc. Article 7340, was taken from Vernonfa Civil Statutes Supp.
1922, Acts 1920, 36th Leg., 3rd C. 9. Ch. 59, p. IO3,?Set:.I,,
Article 7597, which reads as follows:
“‘That the owner or any one having an Interest
In land or lots heretofore sold to the State, or any
city or town, under the decrees of oourt, in any suit
or suits brought for the collection of the taxen thereon,
or by the collector of taxea, or otherwise, shall have
the right at any time wlthln two years after the taking
effect of this Act to redeem the same upon the payment
of the amount of taxes for which sale was made, togeth,er
with all costa, penalties and Interest now required by
law, and also the payment of aPI taxes, interest, penal-
ties and costs on or against said lands or lots at the
time of said redemption. And where lands or lots shall
hereafter be sold to the State or to any city or town
for taxes under decree of court ln any suit or sults
brought for collection of taxes thereon or by a aoPle-
tor of taxes, otherwise, the owner having an interest
fn such lands or lots shall have the right at any time
within two years from date of sale upon pay-meat of the
amount of taxes for which sale was made, together with
all costs and penalties req4red by law, and also the
pa-ymentof all taxes, interest, penaltlea and casts cr.
or against said lands or lots at the time of redemptlon.‘s
It wlI.1be observed that the codifiers In I.925omitted
the first portion of said Article 7697 which provided for the
owner to redeem his lands that had theretofore been sold t.othe
State. However, upon the authority of an Opinion by the Com-
mission of Appeals of Texas, written by Judge Ocle Speer In
Rose et al v. Turner et al. 7 5. W. (26) 70, In answering cer-
tified questions from the Court of Civil Appeals for the First
Supreme Judicial District, we are of the opinion that said
omitted portion of the 1920 Act Is now In full force and effect.
Judge Speer In holding that Article 7696 had not been repealed
by reason of Its omission from the 1925 codification had the
following to sayr
Honorable David McNeill, Jr. - page 9 (O-6277)
"By Sec. 2 of the Codification Abt (V. A. C. S.
1925, final title) there is this repealing clause:
'That all civil statutes of a general~nature, In force
when the revised statutes take e~ffect;and which are
not Included herein, or which are not,.herebyexpress-
ly continued in force,,are hereby repealed.'
nBy Set . 9 It Is expressly ;,pr~ovlded,,:
,!:iY;;;:.:~
1~:
,' ,,;::+
in
'That all laws * * * vesting a time llmlt In which
to redeem lands sold for taxes * + * are continued In
force.'"
In order for us to determine the amount the owner of
the land in question would have to pay to the State of Texas in
order to redeem said tract of land, $wlll .bb~necessaryfor us
to determine whether the land should be~‘kedeetied.underArt.
5204, Paschal's Digest, Vol. 1, which was In force 'at,the time
the land was sold, OP Article 7289, V. A. C. 3,, cirArt. 7291,
V, A. C. S., or Art. 7697, Vernon's Civil Stats. Supp. 1922,
which was omitted In the 1925 codification. As stated above,
we are of the opinion that Art. 7291 would take precedence over
Art. 7289. It is our opinion that at the time the land was
purchased by the State of Texas in 1856 that the thenowner of
the land had a vested right to redeem same acco~lng to the
terms and provisions of the redemption Iaw as then In force and
effect, (See 61 C. J. Sec. 1687 et seq. p. 1243 ax-&authorities
there cited,) and that the Legislature could notdivest said
owner of such vested right by later making the terms and‘condi-
tions of redemption more onerous. However, if the Legislature
by later enactments made the terms and conditions of redemption
less onerous to the land owner, we are of the opinion that the
Iand owner could take advantage thereof. We will therefore
compare the various redemptive acts to ascertain which one or
ones are less onerous to the land owner.
The origlnal act, being Art. 5204, would on Its face
seem to be less onerous by reason of the fact that it only pro-
vides for the paying to the State the amount of taxes and one
hundred percentum thereon together with costs of sale, and the
payment of all taxes that would have:accumulated on said proper-
ty for each year since 1856 as though the same~had been regular-
ly assessed. But our Supreme Court in the cas,eof,F. R. Dean v.
State of Texas reported in 54 Tex.'313, inconst~rulng the redemp-
tion statute of 1876 which did not provide for the land owner to
pay interest on the taxes and costs, held that the State would
oe entitled to six percent Interest up to the time of the redemp-
tion. Thus we see that the land owner under this original act
would have to pay double the amount of the 1854 taxes and all
Honorable David McNeill, Jr. - page 10 (O-6277)
costs and interest thereon at the rate of six percent from 1856
to this date, as well as all other delinquent taxes.
Under Article 7289, the land owner would have to pay
the State in order to redeem double the amount of the purchase
money, (which included the 1854 tax and the costs) with six per-
cent thereon to this date as well as all other delinquent taxes.
Under this article the land owner would not only have to pay
double the amount of taxes but also double the amount of costs,
under the authority of an opinion by James S. Hogg, Attorney
General of Texas, dated November 14, 1887, recorded in Vol. 12,
p0 237 of the Attorney General's Opinions. So it is seen that
this statute is more onerous to the land owner than said article
5204, Paschal's Digest (supra).
Art. 7291, V. A. C. S., provides that the land owner
should pay to the State the "amount designated by the Comptrol-
ler as due thereon with costs of advertisement." This statute
within itself)does not state how the Comptroller is to arrive at
the amount "due thereon with costs of advertisement." We do not
believe this article conflicts with that portion of Art, 7697,
Vernon's Civil Stats. Supp. 1922, which was omitted by the 1925
codifiers and are of the opinion that they should be construed
together, and therefore hold that the Comptroller should be
guided'by the terms of Article 7697, V. C. S. Supp. 1922, in
designating the amount due by the land owner. This statute pro-
vides that the land owner may redeem his land upon the payment
of the amount of taxes for which sale was made, together with
all costs, penalties and interest now required by law and also
~the payment of all taxes, interest, penalties and costs on or
against said lands or lots at the time of said redemption, It
clearly appears that the statute quoted from next above Is less
onerous than either of the other redemption statutes and that
the land owner could at his election either redeem his land by
paying to the State the amount therein designated or redeem his
land by paying to the State the amounts designated in the redemp-
tion statute in force at the time the sale was made in the year
1856. It will be noted that Art. 7291, (supra) provides that
the owner of real estate which has been bought by the State may
redeem the same at any time prior to the sale thereof and does
not limit his right of redemption to a 2-year period. We believe
that this statute strengthens the conclusions reached in our
Opinion No. o-6173 which is herewith enclosed.
The Legislature in 1935, 44th Leg., pi.355, Ch. 128
acting in pursuance of the Constitutional amendment of November
8, 1932 in amending Sec. 55 of Art. 3 of our Constitution,
Honorable David McNeill, Jr. - page 11 (O-6277)
provided that "the collection of all delinquent ad,valorem taxes
due ,thestate, County, Municipalltg or other defined subdivision
that were delinquent prior to December 31, 1919, is forever
barred." By virtue of the above act It is our opinion that the
land owner may redeem his land without paying the State any
delinquent taxes that were delinquent prior to Depember 31, l$lg.
As stated above in answer to quastion No. 1, the land
owner in order to redeem must pay to the Tax Collectos~ as pro-
vided in Art. 7697, V. C. C. Supp. 1922 the "amount of taxes for
which sale was made, together with all costs and penalties now
required by law, and also the payment of all taxes, interest,
penalties and costs on or against said lands arts at the
time of redemption." You will note that this statute does not
provide for the landowner to pay the taxes for which the sale
was made, but provides for the landowner to pay the "amount of
the taxes for which the sale was made." It,Is our opinion that
the Legislature in so providing was merely using the amount of
the taxes as a measuring rod to determine what amount the land;
owner should pay the State In order to redeem his land. We are
led to the above construction by the fact that the Legislature
stated in plain and unambiguous terms that in addition to the
"amount of the taxes for which the sale was made," the landowner
should pay "all
- taxes, . . . on or against said lands or lots
at the time of redemption." So we hold that in 1935 the Legis-
lature "forever barred" 'all taxes . . ;,on or against said
lands or lots at the time of redemption which were delinquent
prior to December 31, 1919, but that the taxpayer should pay to
the State an amount of money equal to the taxes for which the
sale was made. The 1935 tax remission Act did not repeal the
Rm,ea~uringrod- "
Trusting that the above satisfactorily answers your
inquiries, we are
Very truly yours
ATTORNEY GENERAL OF TEXAS
By /s/ W. V. Geppert
W. V. Qeppert
Assistant
WVG:iw
Encl D
APPROVED JAN 4, 1945 APPROVED
Opinion
/s/ Carlos Ashley Committee
FIRST ASSISTANT 23y /%/ Qw3
ATTORNEY GENERAL ~.f2hairman