Untitled Texas Attorney General Opinion ( 1965 )

Honorable Jerry Sadler Opinion No. C- 478
Commissioner
General Iand Office Re: Whether surface lease for
Austin, Texas a term exceeding ten (10)
years on land being pur-
chased under Veterans8 Land
Program is in violation of
Section 17, Article 5421m,
V.C.S., and if so, is the
Dear Mr. Sadler: lease void or voidable.
Your recent letter requests our opinion as to the
above stated questions relating to land being purchased
from the Veterans' Land Board.
Pertinent portions of Article 542l.m,Section 17,
Vernon's Civil Statutes, are set forth as follows:
"Section 17. The sale of all lands
hereunder by the Board may b properly
initiated by CONTRACT OF SAG AND PURCBASE
. . . wrovided further. that wrowertv sold'
under the provisions of this Act-may-be
transferred, sold or conveyed at any time
after the entire indebtedness due the Board
.
under the contract of sale is paid, the Board
shall execute a deed under its seal to the
original purchaser of the land or to the last
assignee whose assignment has been approved
by the Board. . . . (Emphasis Added.)
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Honorable Jerry Sadler, page 2 (c-478)
It is presumed for purposes of this opinion, that the
lease in question relates to land presently being purchased
under a contract of sale and that a conveyance of the prop-
erty to the veteran has not occurred, although it was not
so stated in your letter.
It is stated in 58 Texas Jurisprudence Second 208,
Vendor and Purchaser, Section 2, that:
"A contract to sell real estate is an
agreement for a sale in futuro, either abso-
lutely or on the happening of some contingency
or the performance of some condition. A trans-
action for the purchase of realty will there-
fore be held to be a contract to sell rather
than a sale, if . . . the purchaser does not
presently acquire a complete and indefzasible
title to the property purchased, . . .
The veteranis``~ldingpossessionof the land under a
contract of 'sale with legal title remaining in the Veterans'
Land Board, an agency of the State of Texas. The property
has not been deeded to the veteran, but will be conveyed
when the entire indebtedness has been paid. We hold that
the owner may limit the use of the property and that the
lease in question is illegal.
"Contracts that are directly and expressly prohibited
by a valid statute couched in unmistakable language are
absolutely void." 13 Tex.Jur.2d 361, Contracts, Sec.2;zg;
Hennessy v. Automobile Owners Assn., __ Tex. -,
S.W. 791 (1926); 47 A.L.R. 521.
The lease is illegal and void since it contravenes a
valid statute. Woolsey v. Panhandle Refining Company, 131
Tex. 449, 116 S.W.2d b75 (1936).
Black's Law Dictionary defines a voidable contract as,
"one which is void as to wrongdoer but,,notvoid as to wronged
party unless he elects to so treat it. A void contract is
defined as, "one which never had any legal existence or effect,
and such contract cannot in any manner have life breathed into
it."
In the case of a voidable contract, there,,isusually
both a power to avoid and a power to validate. Corbin on
Contracts, Vol. 1, Sec. 6, p. 11.
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Honorable Jerry Sadler, page 3 (C-478)
The statute does not provide for ratification or vali-
dation by the Veterans' Land Board of a surface lease in
excess of ten (10) years and, therefore, the lease in ques-
tion is a void agreement.
SUMMARY
A veteran cannot give a valid lease on
the surface of land being purchased by con-
tract of sale under Article 542lm, Section
17, V.C.S., in excess of ten (10) years, and
if he does so, the lease is void.
Yours very truly,
WAGGONER CARR
Attorney General of TexaC; ,-,
Assistant
CIS:afg
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Milton Richardson
David Longoria
Phillip Crawford
Harold Kennedy
APPROVEDFOR THE ATTORNEYGENERAL
By: T. B. Wright
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