OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
ma. Gaorge H. Shepparb
&mptrollrr of Publio Aooounta
state OS Toxaa
Austin, Texas
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
The State filed annwar and
UC), juwnt was bad in favor of both
property war ldrertiaed ior sale under
aold on the flrat Tuesday in August,
1 diatrlot bought the property in to be
t for all taring unlta. The two-year porlod
for rodunptlon l x p h ain b August 1943. By olaraight tho
6uthoritlra Sailad t0 get Out Writ Or PO8f~+88iOU Within
the twenty days aa provided in Soo. 12 of Art. 7345b oi
tha Ravlaod Statutea,
*Ia there any naoeaalty for writ of poss~aion to
iaauo whan thr proprrty ia bought in by a taxing unit?
214
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, to
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
P20) days after the period of redemption shall have e:plred
to 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-
ute referred to. There is no provision In said statute pro-
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 3
In a nswer to y o urleoond question, we idrlao:
As hrretofore state4 by us, the tom8 or the
judgment rhould folla tha statutory requlramenta as to
thbr oontenta a? •am~r Wo must laauaa that thr judgnrent
r&erred to doss follow the raquiremaata of the statute
relating thereto, and thrrefora of418 for the laauanoe of
a writ of poaseaalon within twenty (20) days after the
pried of rederqption lxplrea. But your request for oplnlon
$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
ju4fpent. In a tax foraoloaure suit, it servos 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 lltuation doer obtain, wa
aug&eat that you take ti,e ratter Up with the oourt whioh
rendered the foreoloaure judgment.
Va do not bellara that the failure to 16oue the
writ of paaaeaalon within the period authorized by the
statute and the judgment of the bout, horetoforo mntloned
by us, would ln anyway be fatal t-0 the tit10 aoqulred by
the purohaaer at the tax foreoloaure aalr of the property
in queeltion.
We are aware that when a deoror awarding tit14 and
posaraalon et land is awardrd in a ohanobry oourt, that the
deorre itarlf door not oporatr to dlrrat tltlo, but that the
dlvoatitWa is oomplbto when the party ontltlod to the land
is put in poaaeaalon theroof. (Sea Toxaa-Xexloan Ry. Co. v.
216
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, the
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 the
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 5
,, Bartlett, 29 Ci+. App 27). W4 rodard thr jud@mnt es
aonoluslr4 aaalnst all plrtloa to the suit who wore 44n4d
with prooeaa~ (Se4 Ball 1. Uarrl ton, 92 5. H. 1023).
~a4 in Orr:r~.Xllaoe 285 S. IV."%50, It wee hold that the
4datenoe of these things, Lo., l) judemnt rar taxes,
(b) for8oloaure of tax lien and 0) proper Ceod from
&erfff, Oonutftsted l *ad tit14 to the lsnd in pueetion.
24 are thersiorc of the opinion thst altho
the writ of POasbSSiOn was not iusuod %hloh should Jmrr
$rsued in aooor4anoo with the statutes and the judgment of
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
oonosrnlng the lsmmoc of a writ 0r posaasalon, we would
furthor point out that in Oem any person (whether the
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 to try title, as need be, end as the faots my
warraat, sad would thus heve aosllablo a writ of possession
agslnst cny wrmgful clalmhnt to said lend or the
poaaasalon thereot.