Untitled Texas Attorney General Opinion ( 1939 )

4
OFFICE OF THE ATTORNEY GENERAL OF TEXM
AUPnN
ExeoutivoSeoretery
Stat* Perk8 Board
Au$tin, -%a8
Dear Sir:
opbion Ioo.o-1
Rar huthorlty
t whioh ha8 been abun-
e tha proportiy ori@mll~ oan-
n pnrlourly doolrredby the
hold Sn twrt 18~ sevorelpar-
in a Doelaratioa0r Trulli, alLthou$h
o thm BtatoPark8 Board mado no
slsntlonof 8uoh doolorationand gmo no inrli-
ration that granter wao aotbg Sn aq Oopaolt~
othor them that or role mmer, would t&B Board
u&or the lOS9 Aat haro~aothority to searoythe
Hon. Frank &Inn, ?aEe ,?
property baok to the parties named in the Mola-
retlon of Trust?
As you polnted out In your letter, A. ii. Wlll-
born, joined by his wife, Ida %. %illborn, orl&nall~
convoyed a oertaln traot or land, now known ae the Fall-
lade8 Ytste Perk, to the State Farks Board, by a lpeolal
warranty deed In whloh ha appears to have sated only for
himSelr and not aa trustee for himself and othars. Cn
Jsnuery 7, 1931, more than two yeera prior to tho dato
OS the oonveyanoe, the Bald Xlllborn bad executed a
dsolaratlon of trust on the property.
Th+ deolaratlon of trurt reoltes that as a
result of tha ioreolorure of e vendor's llon on raid
propartr,, he had aoqulred tltlo to the proporty roar the
benotlt of him8alf and the o th e rleventoen tonants In
oommon named therein, all of whom had jointly purohased
the vendor's lien not&r. A. II. Glllborn, tbo original
donor, Is now dord. The other bensrlalal ownera, in-
oludlug tha holrs or Wlllborn and the hairs of those of
the other benefloial ownore who aro also dead, have ro-
questad t&at tho Stats Parka Board reoonvey t&e* undl-
vidod Interest to enoh, rsspeotlvely, by general warrenty
doed.
Tha portlnent part of sanato Bill 298; rhloh
amendaArtlole 6068, ron48 ar follows:
"If title to a site has become vested in
the State for park purposes and tha site i8
doemU unsuitable for a Stats Fark by the State
Parks Board . . . the Board 1s hereby authori-
zed and empowered . . . wltero the lend ha6 baen
donated by a olty, aounty Or othar (Ionor, to
transfer title to suah city or county or other
donor where they wish the site returned to
them . . .; provided that in all lnstanoel, where
the Board aota under authority of this ItatutO,
it must do 80 b a tvio-third8 a/3) vote of the
members o? the i oard, and prot I,d%ltbgtt$
Chairman OS the Board shall ai
mant.8 authorizad u&Or thlf6 A0t% -
Hon. Frank i&Inn, Pago 3
This Act merely ~lvos thr, Board authority to
transfer title to nuoh land to the donor; It 14 allent
as to OeSfUi6 quo trust and hslrr o? the donor. It make8
no provieloa for a warranty of any natwe, and %wdo not
believe that It oan be oonrtrued as authorizing the
Board to @irk any ruoh warranty. Sinoe the Board ao-
qulred title merely by special warranty doad, It oer-
tainlf should not b4 called upon to return more than It
rooelved , anU a reconveyance with a general warranty
would, In effect, b4 (rlvlw more than It reoelved. There-
lore, In amw4r to your first quastion, It 14 our opinion
that the Bosrd has no authority, at least In the Instant
ease, to execute a warranty doad.
Co heve also reached the oonolueion that und4r
the Aot, the Board has no authority to make a oonveysnoo
of title to me Intereot of any o? the oeatulr que trust
4xoept that of the donor, A. 8. Willborn, 4lnoe under our
Interpretation of the tranaaotion, the Board auqulred title
only to hle Intorest. Ono of the reaaone for our Inter-
pretation la, that aa the State peld nothing ?or th4 land,
It oannot quall?y as a bona iId4 purohaaer for value.
Niohols-Steuart v. -ro6by, 89 8. W. 380, 87 Tar. 443.
Another I4 that It took title subject to outetsndlng equl-
tloa, and to only suoh title as Its wantor Willborn,
poasenaed. Nichols-Steuart V. Crosby, suprk.
In the abaenoe of a wrItten authorization iron
the seventeen other ben4rlolarIea named In the Dealaration,
the oonveyenoe to the State Perk8 Board, as to their Int-
ereata, I4 invalid under Artlola 1288, B. 0. S. of Texas,
1983, whloh requires that all oonveyanoee of land, aa well
ss the authority of ago&e to aonvey land, shall be in
writing.
The Bill makea no epeoifio provirion for 00~
teysnoe to the heirs of the deoeesed donors. Eowevar ,
the obvious objoot of th4 Bill Ie to dlveat ths Board o?
title to land whioh Is un&itablo for park pUposea, and
to pcrmlt euoh land to be put to other ua44.
Wa assume that the negotiations preoedlng th4
oonveyanoe disoloee that the land was OrIginallY oonveyed
?or the purpose of oonverting It Into a park althoueh 4uoh
intent wms not 4xpresaed In the instrument. W4 believe
Eon. Frank Quinn, Page 4
that Senate Bill 890 was Intended to authorize a reoon-
veyanoe to the donors where auoh use la not made of the
land beoauae of uDlultabIllty and for which reeaon the
Stats Parka Board dealres to return t&e lend. The death
of the orl,@nal donor does not defeat the purpooe of the
statute but m4rely ontltles the doq’a heir6, deVim846
or loge i repre84ntatIves to r4oelve the reoonveyanoe.
Therefore, beaed upon our aasumptlon that the
donor*8 original purpose ln oonveyiri& the property now
kncwn a8 Pellaadea State Park wa8 for oonverting It into
a park, It is our opinion that the Board hae the.authorl-
tp to reoonvey suah title aa It r4oelved to the property,
namely, title to the undivided lntereet of A. H, Willborn.
In your statement 0s raotm, you stats that the
heirs of A. H. Klllborn desire th0 reoonveyanoo Of hi8
Intereat; it Is our opinion that the are entitled to
same. However, the deed to A. li. WI1 Iborn’s lnterost
is made to hlr satate. A oonveyenoe to either would,
In our opinion, be propor.
The deeds aooompanplng your lettor and returned
herewith are ln general warranty form. hlao, there era
dOads to the verlour other Intoroots lnoluded under the
Deolaration o? Trust. It follow8 from our opinion that
none of the deodrr should be ex@outed, the one to t&o
Wlllborn estate beoause not In proper form and the othera
both beoauae not In proper form and beoause they purport
to oonvey an Interest not held by the State Perks Board.
;$ruatlng that this 8atl~?6OtOrlly an8wefl your
Inquiry, we are
Your4 very truly
ATTORY GXNB3ALOB TBXfiS
Asalstant