Untitled Texas Attorney General Opinion ( 1952 )

Hon. Rascom Giles Opinion No. V-1441
Commlssioner
General Land Office Re: Reinstatement of a
Austin, Texas forfeited School Land
Purchase, Contract by
one claiming title ,by
virtue of a tax judg-
ment and deed executed
before forfeiture of
the purchase contract.
Dear Sir:
Your request for an opinion of this office
reads in part as follows:
"This department desires your offi-
cial opinion concerning the right of re-
instatement of a forfeited School Land
Purchase Contract by one claiming title'
by virtue of a tax judgment and deed,
both executed prior to the forfeiture of
the purchase contract by the Commissioner
of the General Land Office."
Public land dbdicated~to the use and benefit
of the permanent free school fund, is not taxable by any
taxing authority so long as title thereto,remains in
the State. Section 2, Article VIII, Constitution of
Texas; Article 7150, V.C.S.; Pitts v. Booth,, 15 Tex.
453 (1855).
However, by Article 7173, V.C.S., the State
requires those holding~publlc free school land under
lease or oontract of purchase to pay taxes upon their
holdings. That article provides in part as follows:
"Property held under a lease for a
term of three years or more, or held under
.
Hon. Bascom Giles - Page 2 - Vl441
a contract for the purchase thereof,
belonging to this State, or that is ex-
empt by law from taxation In the hands
of the owner thereof, shall be considered
for all purposes of taxation, as the
property of the person so holding the
same, except as otherwise specially pro-
vided by law 0 s . .‘I
The delinquent taxes for which judgment and
subsequent sale were had herein undoubtedly were levied
under authorization of the quoted provision. Having
the authority to levy taxes upon the interest held by
a purchaser under a School Land Purchase Contract, it
must follow that the right to enforce payment of such
taxes also exists In the taxing authority.
That such an interest is subject to sale
under execution was determined in Martin v. Bryson,
71 S.W. 615 (Tex.Civ.App.1902, error ref.). In so
holding, the court adopted the following statement from
the second edition of Freeman on Executions:
“So one who purchases lands from a
state under a contract which provides for
certain payments, upon the making of which
he will become entitled to a patent, and
upon default in any of which he forfeits
all rights under his contract, has a vendi-
ble interest In such lands prior to their
forfeiture, and one which is subject to
execution. The estate acquired under the
levy on an execution is, of course, no
better or more certain estate than that
held by the judgment debtor, and remains
liable to be defeated by the same execu-
tion sale. 0 . 0”
The court then held as follows:
“We therefore conclude that as the
interest of the appellee, Bryson, in this
section of land, was such as he could sell’
to any person who would buy, regardless of
whether such person occupied the land after-
wards or not, it was a vendible interest
and was subject to execution.”
.
Hon. Elascom Giles - Page 3 - V-1441
In Danciger v. State, 140 Tex. 252, 166 S.W.
2d 914 (1942), land held under a School Land Purchase
Contract was said to be subject to sale under a judg-
ment for taxes due against it.
It is well settled that under a School Land
Purchase Contract title to the land remains in the
State, and the purchaser has only the right to acquire
it by complying with the conditions prescribed by
statute. Williams v. Finley 99 Tex. 468, 90 s.w.1087
(1906); State vi Elza, 109 Tgx. 256, 206 S.W. 342'(1918);
Perez v. Canales, 69 Tex. 674, 7 S.W. 507 (1888).
.``Where execution has been had for delinquent
taxes on land held under such a purchase contract, the
effect of a valid tax sale and deed is to divest the
__ tax debtor of all right, title,. and interest in and to
the land described therein and to vest such right,
tit1t3, and interest in the grantee of the tax deed.
The only right which could be acquired under the tax
deed is the right of the purchaser from the State to
acquire the land from the State by complying with the
conditions prescribed by statute.
Article 5326, V.C.S., provides in part as
follows:
"If any portion of the interest on
any sale should not be paid when due, the
land shall be subject to forfeiture by the
Commissioner entering on the wrapper con-
taining the papers 'Land Forfeited,' or words
of similar import, with the date of such ac-
tion and sign it officially,and thereupon
the land and all payments shall be forfeited
to the State, and the lands may be offered
for sale on a subsequent sale date. In any
case where lands have heretofore been for-
feited or may hereafter be forfeited to the
State for non-payment of interest, the pur-
chasers, or their vendees, heirs or legal
representatives, may have their claims re-
instated on their written requestby paying
into the Treasury the full amount of inter-
est due on such claim up to'the date of re-
instatement , provided that no rights of
Hon. Bsscom Giles, Page 4 - V-1441
third persons may have intervened. The
right to re-instate shall be limited to
the last purchaser from the State or his
vendees or their heirs or legal repre-
sentatives. . . .'
We have found no Texas cases defining the
limitations of the last-quoted sentence. However,
It is well settled that statutes providing for for-
feiture of rights under School Land Purchase Con-
tracts must be strictly construed, while those'
statutes relieving from forfeiture of such rights
must be liberallv construed In favor of the owner
at the time of forfeiture. Lovett v. Simmons,
29 S.W.2d 1021 Tex. Comm. App.1930); Cruzan v. Walker,
119 Tex. 189, 2 L S.W.2d 908(1930); Mound Oil Co. v.
Terrell, 99 Tex. 625, 92 S.W. 451 (1906).
In Brooke v. Eastman, 17 S.D.339, 96 N.W.
699 (1903),the Supreme Court of South Dakota had be-
fore it a statute providing for the purchase of public
lands of South Dakota. After setting forth the con-
ditions to be met ky the purchaser of such lands, the
statute provides: in that event only, will the
said ourchaser,~his'heirs. assigns. or other legal
representatives, be entitled to a patent for the land
herein described. . 0 ." (Emphasis added;) It was
held that the interest of such a purchaser was subject
to execution and sale for delinquent taxes and that if
the execution and all other proceedings therein were
regular, the interest of the purchaser from the State
passed to the purchaser under the tax sale, and the tax
sale vendee could compel the State to issue a patent
to the lands so sold to him upon payment of the bal-
ance of the purchase price.
In view of the foregoing, and based upon the
assumption that the tax judgment and deed were valid
in every respect, it is our opinion that a claimant un-
der such a valid tax judgment and deed executed before
forfeiture of the purchase contract is within the class
of persons having a right of reinstatement under
Article 5326, V.C.S.
Hon. Bascom Giles - Page 5 - V-1441
SUMMARY
A claimant under a valid tax
judgment and deed executed before
forfeiture of the purchase contract
has the right of reinstatement of a
;~;k;;ited School Land Purchase Con-
.
APPROVED: Yours very truly
Jesse P. Luton, Jr. PRICE DANIEL
Land Division Attorney General
Mary K. Wall
Reviewing Assistant
9y $fJtdaAxI+
Charles D. Mathews William H. Holloway
First Assistant Assistant
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