Untitled Texas Attorney General Opinion ( 1939 )

January 16, 1939
Honorable Charles T. Banister
Criminal District Attorney
Corsioana, Texas
/
Dear Hr. Banister: /
opinion No. f3-60
Re: Suit &yState to set aside.' ,1'
tax sale.,
Your letter of January 10, 1939, in regard to the State
setting aside a tax sale beoause of a grossly Inadequate price,
was duly received by this oftioe.
'Xe interpret your question to be whet~heror not the
district or county attorney oan maintain a suit,or set aside
a tax sale of real estate because the sale Frioe was grossly
inadequate, it being less than the taxes due in this case.
Fe understand that the sale in questioo was made under
the proceeding prescribed in Article 7320 of the Revised Civil
Statutes of Texas, in view of the fact that you any "that the
sherirr had a right to refuse to acoept the bid."
The on17 refarenoe to this question in any oi the 'stat-
utes is in Article 7328 where it says:
”
....the acceptance by the sheriff of the bid
shall be conclusive and binding on the question
of the suffioienoy of the bid, and no action
shall be sustained in any court of this State
to set aside said sale on grounds of the in-
sufficiency of the amount bid and accepted.
Nothing herein shall be oonstrued as prohibit-
ing the State, aotlng through the oounty attorney
of the county wherein the laud lies, or its At-
torney General, from instituting an action to
set aside the said sale on the grounds of fraud
or collusion between the officer making the sale
and the Furchaser...."
(’
,
Honorable Charles T. Banister, January 16, 1939, Page 2
We feel that this provision oonolusively prohibits the
bringing of'a suit by the district or county attorney to set
aside a tax sale on the grounds of inadequaoy of price alone.
Rut, this would have been the lawsif this provision had not been
put in the statute. There are no Texas cases, as far as we can
find, that hold that the State can bring a suit to set aside a
tax sale under any circumstances. The only Texas oases in ivhioh
tax sales have been annulled have b$en suits brought by lndivi-
dual persons with an interest in the land. Cooley on Taxation
indioates tbnt a person with an interest can bring suoh a suit
but that the State cannot intain this kind of suit. 4 Cooley
oh Taxation, 4 ed., 2949,~7says:
"Aotions relating to tax-titles may be brought
eithar by the tax purchaser or his assigns or
repxesentative, or by the owner of the property
sold‘lor taxes or his assigns or representative.
The former are to reco,ver.,possesslon
in aid of
the tax-title or to confirm or quiet the tax-title.
The latter are an attaoh on the tax-title....11
In Article 7328, quoted above, it is provided that a
suit may be brought by the State to set aside the sale *on the
ground of fraud or collusion between the officer making the
sale and the urcbaser...." If you could bring your suit under
this provision and allege and Drove fraud or oolluslon between
the offioer and the purchaser, you then could probabLy prove
as evidence of the fraud and collusion the faot of inadsquaoy
of price. W8 make this statement because the Texas cases in
which individuals with an interest in the land have brought
suits to set aside tax sales hold that inadequaoy of prioe
alose will not set aside a tax sale, but that inadequaoy of
prioe will be considered along with other irreguls~Xties.
Rogers v. Moore, 100 Tex. 220, 97 S.W. 685; Ross v. arouilhet,
00 3. W. 241: Crosby v. Bonnowskv (Ct. Civ. ADD.)69 S. %'.212:
Crosby v. Bo$owsky ISup. Ct.), 9s 'i!ex.449, Sk-& W. 47, and
40 Tex. Jur. 263.
Our answer to your question is that the distriot or
oounty attorney cannot maintain a suit to set aside a tax sale
of real estate on the grounds of :Trossinadequno7 of sale prioe
alone; but we do hold that in a su:t by the State to set aside
a tax sale *on the ground of fraud or.collusion between the
officer making the sale and the purchaser*, it would be proper
to show inadequacy ol sale price as evidence of the fraud
Iionomble Charles T. Banister, January 16, 1939, Pa* 3
or collusion.
,_~-
Yours very truly
-ATTORNEY CiG=GR& OF TEXAS
BY
Cecil C. Rotsah
ksistant
ATTXXEYGEXWL 01 TQdS