Untitled Texas Attorney General Opinion ( 1958 )


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  •                          hy   21,   1958
    Honorable Bill Allcorn               Opinion No. Ww-436
    Commissioner
    General Land Office                  Re: Whether a certain tract
    Austin, Texas                            of land In Bosaue Countv
    may be patented:under -
    Article 5421c, Section
    Dear Mr. Allcorn:                        5, V.C.S.
    The opinion request from your office states that
    on January 19, 1038, the Board of Land Commissioners of Bastrop
    County issued to Thomas H. Maya a headright certificate for
    three fourths of a league and one labor of land. Patent was
    Issued for three fourths of a league and In 1858 a certificate
    for the unlocated balance of one labor was issued.
    The Constitution of 1876, adopted by the voters
    on February 15, 1876 provided in Section 2 of Article XIV that
    "all unsatisfied genuine land certificates now In existence
    shall be surveyed and returned to the Qeneral Land Office with-
    in five years after the adopt~lonof this Constitution, or be
    forever barred". Subse uent to the expiration of the five year
    period, on March 24, 1881, an application under said certifi-
    cate was filed with the county surveyor requesting the survey
    of a labor of land. County surveyor S.J. Siddall promptly made
    the survey and on April 6, 1881, the application, field notes
    and certificate were filed in the (feneralLand Office as shown
    by the endorsements thereon. An official file on said survey
    was set up in the Land Office, belng designated as "File 2060,
    Thomas H. Mayes, Mllam 1st Class, 177 acres," and said sur-
    vey is shown on the official Land Office map of Bosque County.
    You request our answer to two questions:
    "(1) Is the tract of land still classified
    as a headright survey, or by the Act of February
    23, 1900, did it become Free Public School Land?
    "(2) Can it now be patented under Article
    5421c, Section 5, V.C.S.?"
    Honorable Bill Allcorn, page 2 (W-436)
    Article VII, Section 2 of the present Texas Con-
    stitution set aside certain lands, Including one half of the
    public domain of the State, for a "Perpetual Public School
    Fund". Under the Act of February 23, 1900, (Acts, 26th Leg.,
    1st C.S., Ch. ll), the balance of the unappropriated public
    domain, with the exception of certain lakes, bays and is-
    lands, was In turn conveyed to the School Fund. And see Articles
    5416 and 5415a, V.C.S.
    Because the certificate was not surveyed and re-
    turned within the five years as required by the 
    Constitution, supra
    , the survey was ineffective as a headright survey and
    the land remained a part of the ublio domain. New York and
    Texas Land Company v. Thompson, 
    13 Tex. 169
    , 
    17 S.W. 920
    (1891).
    Under Article 541b R S    the land in question belongs to the
    State Permanent Soiooi %nd. We agree with you that the land
    cannot now be patented under the headrlght certificate.
    Section 5 of Article 5421c, V.C.S., provides in
    part as follows:
    "Any headright survey . . . heretofore
    awarded . . . whloh survey has been held and
    claimed In good faith by any party for a period
    of ten years prior to the date of application
    for patent and which survey cannot be patented
    under existing laws, may be patented on pay-
    ment of One Dollar ($1.00) an aore to the Land
    Commissioner."
    Under Section 10, General Provisions, Constitution
    of the Republic of Texas, each white man who was head of a
    family
    .   and who resided In Texas on the day of the Texas Deola-
    ratlon of Independence was entitled to a league and labor of
    land. By the act of December 14, 1837, 1 (fam.1404, a Board of
    Land Commissloners was set up In each county to pass on land
    applications and to issue land certificates to those entitled
    thereto under such constitutional provision. The certificate
    here under consideration was for less than a league and labor
    of land. However, certificates for amounts less than that
    stated in the Constitution have been upheld as valid. State
    v. Sullivan, 
    9 Tex. 156
    ; Hill v. Moore, 
    85 Tex. 335
    , 19.
    162.
    Section 5 of Article 5421~ was discussed at length
    in Barber v. Glles, 
    146 Tex. 401
    , 
    208 S.W.2d 553
    (1948), a
    case whose facts are similar in several respects to the facts
    YOU resent. Field notes were filed in the beneral Land Office
    in 179
    8   under an 1870 law authorizing rants to settlers of
    homestead tracts. Article 4171, R.S. 1%95, provided for for-
    feiture of such a grant for failure to file an affidavit of
    Honorable Bill Allcorn, page 3 (``-436)
    three years' occupancy of the homestead tract. The land
    having been forfeited for such failure, the long-time pos-
    sessor of the land demanded the right to purchase under
    Section 5 of Article 5421~.
    In dlsouasing said section, the Court said at
    page 554:,
    "The language used, or pa'rtof It, eug-
    gests that the first part of Seotlon 5 IS ln-
    tended as an aot of validation, This Court
    has been generous In upholding legislation
    validating titles. . . . By the terms of the
    Homestead Donation Act, Article 4171, R.S.
    1895, all rights under the original deslg-
    nation and survey terminated and the land
    became vacant, unappropriated public land
    when Callahan or his assignee failed to
    make,satlsfactory proof of three years' oo-
    cupancy of the land; and by the terms of the
    Aot of February 23, 1900,.. . . the land was
    set apart and granted to the public school
    fund. After the land had thus been set apart
    to the pub110 sohool fund the mandate of Sec-
    tion 4 of Article VII of the Oonstitutlon,
    Vernon's Ann.St., forbade Its disposition
    otherwise than by sale. . . The tract of
    land, the subject of oontroversy herein, is
    surveyed land within the definition contained
    in Section 3 of the 1931 Act, field notes for
    it being on file in the General Land Office.
    "The first part of Section 5 of the 1931
    Sales Act may reasonably be construed as au-
    thorizing sales of the land to which it applies,
    giving to the persons who have held and claimed
    the land in good faith for 10 years preference
    rights to buy it at the price named, and thus
    construed it ,ls in our opinion valid. . . Pre-
    ference rights to purchase public school land
    have often been given by acts of the legisla-
    ture to designated classes of persons, and
    such legislation has been sustained as the valid
    exercise of legislative power. 'When and to whom
    the lands shall be sold, is a question of sound
    policy and belongs to the political department'."
    Whether or not the Thomas H. Rays survey was a
    "headright" survey heretofore "awarded" is our question. Your
    office informs us that in the early practice of the General
    Land Office, no formal "award" was made prior to the issuance
    .     .
    Honorable Bill Allcorn, page 4 (wW-436)
    of a patent.,A location was simply made on vaoant public do-
    main and the field notes plus the certificate were filed In
    the General Land Office. In Stubblefield v. Hanson, 
    94 S.W. 406
    (Tex.Civ.App. 1906, error
    "No question Is raised as to the vali-
    dity of the warrant, and the survey and loca-
    tion of the land by virtue thereof was not
    controverted. This was sufficient to sever
    the land from the public domain and vest title
    in the owner of the warrant for whom the lo-
    cation and survey was made, and is sufficient
    title to authorize the maintenance of an ac-
    tion of trespass to try title."
    Technically, of oourse, no award of a headright
    survey was accomplished because the certificate under which
    the survey was made was barred by limitation under the con-
    stitutional provision. The survey hence was invalid. Never-
    theless, the field notes, along with the headright oertifl-
    cate, were received and filed in the Qeneral Land Office, and
    they have never been cancelled. Apparently no question as to
    the validity of such survey has been raised in over three
    quarters of a century. The survey appears on the official
    Bosque County map in the General Land Office. It was not the
    intention of the statute under consideration to give a pre-
    ference right to purchase~a survey previously awarded or sold
    when such previous award or sale was made in aocordance with
    law in all respects. To the contrary, Section 5 specifically
    states that It applies only to surveys which "cannot be
    patented under existing laws". This presupposes a flaw in the
    title of the buyer or awardee of such serious proportion as
    to prevent the issuance of a patent.
    The purpose of Section 5 was to grant a preference
    right to purchase for a dollar an acre to one who in good faith
    reliance upon the survey had held and claimed the land for 10
    years. Our Supreme Court in Barber v. 
    Qiles, supra
    , refers to
    Section 5 as an "act of validation" and says that said court
    "has been generous In upholding legislation validating titles",
    citing cases upholding the Relinquishment Act and the Small
    Bill, respectively. Giving the statute a liberal construction,
    as appears to be authorized by the above statement, we hold
    that the Rays Survey may be patented upon a compliance with
    the terms of Section 5, Article 5421c, not because the head-
    right survey was valid but because such invalid survey, when
    combined with 1O~years good faith possession thereunder, gives
    to the good faith claimant the right to buy at the stated price
    the land he had long thought that he owned.
    Honorable Bill Alloorn, page 5 (w-436)
    SUMMARY
    The Texaa Constitution provides that existing
    land oertifioates surveyed more than five years
    after the adoption of the Constitution are for-
    ever barred. A survey under an 1858 headright
    certificate filed in the Land Office after the
    expiration of said five year period Is lneffec-
    tlve, and the land remains a part of the public
    domain, being dedicated to the'State Permanent
    School Fund under Article 5416, R.S. The land
    may, however, be patented under Section 5,
    Article 54210, V.C.S.
    Yours very truly,
    WILL WILSON,
    Attorney General of Texas
    J. Arthur Sandlln
    JAS:bh
    APPROVED:
    OPINION COMMITTEE
    Gee. P. Blackburn, Chairman
    J.C. Davis, Jr.
    Milton Richardson
    Edward Cazares
    REVIEWEDFORTHEA'P'PORNEY QENERAL
    BY:
    W.V. Qeppert
    I_
    

Document Info

Docket Number: WW-436

Judges: Will Wilson

Filed Date: 7/2/1958

Precedential Status: Precedential

Modified Date: 2/18/2017