Alabama Attorney General Opinion 1979-0048

# OFFICE OF THE ATTORNEY GENERAL 79-00048 file #41 CHARLES A. GRADDICK ATTORNEY GENERAL STATE OF ALABAMA TO THE EXTENT THERE IS A CONFLICT, THIS OPINION HAS BEEN OVERRULED BY THE OPINION ISSUED TO DEBORAH B. CREWS, DATED 11/22/2011, A.G. NO. 2012-012. LEE L. HALE DEPUTY ATTORNEY GENERAL WILLIAM M. BEKURS, JR. EXECUTIVE ASSISTANT WALTER S. TURNER CHIEF ASSISTANT ATTORNEY GENERAL JANIE NOBLES ADMINISTRATIVE ASSISTANT February 2, 1979 ADMINISTRATIVE BUILDING 64 NORTH UNION STREET MONTGOMERY, ALABAMA 36130 (205) 832-5640 HERBERT I. BURSON, JR. B. FRANK LOEB PHILIP C. DAVIS RON BOWDEN JOHN J. BRECKENRIDGE WILLIAM L. THOMPSON Assistant Attorneys General Revenue Department Hon. W. Hardy McCollum Judge of Probate Tuscaloosa County Courthouse Tuscaloosa, Alabama 35401 TAX SALES - JUDGES OF PROBATE Where the purchaser at tax sale died before expiration of the period of redemption without assigning a certificate of purchase by indorsement or otherwise in writing, the Judge of Probate is not authorized under §40-10-29, Code of Alabama 1975, to execute a deed to decedent's widow who is sole beneficiary under his will Dear Judge McCollum: Reference is made to your letter of December 1, 1978, in which you request the opinion of this office as to whether you have the authority and/or duty to issue a tax deed to Mrs. Walter G. Dockery whose husband purchased at a tax sale and died before the expiration of the three year period for redemption. You state in your letter that Mr. Dockery died leaving a will under which his wife was sole beneficiary and said will was subsequently admitted for probate. After carefully studying the opinions contained in Quarterly Reports of the Attorney General, Vol. 23, p. 64; Vol. 30, p. 50; and opinion rendered to Honorable Estes R. Flynt, Judge of Probate, Lauderdale County, Florence, Alabama, dated March 22, 1962, and the authorities cited in these opinions, it is my conclusion that you are under no duty and in fact have no authority to issue a tax deed to Mrs. Dockery. As stated in Vol. 30, p. 50, supra: Hon. W. Hardy McCollum February 2, 1979 Page 2 "Where the purchaser at tax sale died before expiration of the period for redemption without assigning his certificate of purchase by indorsement or otherwise in writing, the judge of probate is not authorized under Code 1940, Title 51, Section 276 to execute a deed to either the decedent's heirs, legatees, or devisees, or to his personal representative." In Alexander v. Savage, 90 Ala. 383, 8 So. 93, the Court said: "Under this state of facts, the deed was clearly void for the want of authority in the probate judge to execute it to the administrators of the deceased purchaser. As grantor, this officer was acting under a limited statutory power. A tax deed made to one substituted for the purchaser, or to any grantee other than one sanctioned by the statute is void. The statutory authority to convey must be strictly pursued by the probate judge, and the deed made only to those to whom he is authorized by law to execute it." Even though in this case the widow, Mrs. Walter G. Dockery, is the sole beneficiary under her husband's will, she is not the "person to whom the certificate of purchase has been assigned" within the strict meaning of §40-10-29, Code of Alabama 1975. Yours very truly, CHARLES A. GRADDICK Attorney General B. Frank Loeb B. FRANK LOEB Assistant Attorney General