Hon. Bascom Glles, Commissioner

General Land Office Austin, Texas Opinion No. V-1438

Re: Legality of issuing a patent on the Iredell Redding Survey under the submitted facts.

Dear Sir:

Your request for opinion reads in part as follows:

"V&desire the opinion of your office regardlng the legality ofthe Qsuance of patent on the Iredell Redding Survey, being Robertson First Class File 527:,Abstract No.677, situated in Navarro County, Texas.

"A certificate of facts Is enclosed which will'state the fact situated involved here

. . ,Due to certainnotations appearing on the file jacketand references theremade, it appears dou,btful that such patent may issue.

"Youropinion Is necessary on account of the conflicting views concerning the issuance of patent. Please advise whether patent can legally issue. The question is not the subject of any pending or proposed litigation so far as is known to this offlee."

The certificateof facts accompanyingyour request relates:Hon. Bascom Giles, Page 2 - V-1438

"That on May 1, 1841, theTraveling Board of Land Commissioners,appointed by an Act of Congress of the Republic of Texas, investigated the records of the different Boards of Land Commissioners East of the BrazesRiver, reported that it investigated the claim of Iredell Redding, by virtue of First Class Headright CertificateNo. 136, issued to the said Iredell Redding, by the Board of Land Commissioners of Houston County, and rejected same, it appearing to their satisfaction that such Certificatewas not legal and genuine;

"That on December 16, 1840, Iredell Redinq made verifiedaffidavit that he was the owner of a claim for one league and one labor of land, issued by theBoard of Land Commissionersof Houston County in the
name of Iredell Redding, per order of the District Court of said County, dated March 2, 1838 and numbered 136, and ,thathe had
never sold, alienated or transferredsame in any manner, that he delivered said Certificate to Richard Sparks, on March 27, 1838 to locate and have surveyed,and that
a short time thereafter, the said Sparks
was killed by the Indians, 'onTrinity as is supposed, that the said Certificate,as he believes,was lost at that timeand that since losthe has neither known or heard of
same since that time;'

"That theDistrict Court of Rouston County in the February term of 1838 in a case styled, IredellRedding vs. the Land Commissioners of Houston County, 'ordered' by the Court that the plaintiffbe allowed
one league and one labor of land agreeable to the verdict of the jury;'

"That on June 12, 1843, IredellRedinq made verified affidavit thathe had placed in the hands of Richard Sparks, his Headright Certificate for one leagueand one labor of land being No. 136, granted to him by the Board of Land Commissionersof HoustonHon. Bascom Giles, Page 3 - v-1438

County, and other Certificates,and that he had not alienated or transferred same in any manner, and that said Certificates had been lost and ,sincelost, he had neither heard of same and had advertised for
same in accordancewith law, and enclosed a newspaper clipping to such eff,ect,advertising the loss of said Certificates,and said affidavit and newspaper clipping,along with the instrumentsrecited in the twoprecedingparagraphs, are,now filed in the General Land Office;

"That on,'April..25, 1850,William M. Lane,District Surveyor of RobertsonLand District, surveyed a tract of 17,433,339 square varas of land for Iredell R din V' by virtue of Duplicate CertificateNo.1 100, issued by the Commissioner of the General Land Office June 12, 1843 for one 'league and one labor of land, and compiled field

. notes of same,which were recorded in the office of the District Surveyor of Robertson Land District, and then transmitted to the Land Office,where theywere received and filed, and Said field notes now bear the following endorsement,on the back thereof, 'Cancelledby corrected field notes;'

"That on O~ctober

10, 1850,William M. Lane, Deputy Surveyor of Robertson Land District, sur,veyed a tract of 8,198,880 squa.re

varas of land in what is now Navarro County, for Ired,ell Reding, by virtue of said DuplicateHeadright Certificate' No. l/100, and compiled field notes of same, which were recorded in the office of the District Surveyor of Robertson Land' District, and then transmitted to the Land Office,,where theywere received, and filed and were approved
as correct on February 9, 1852;

"That on June 16, 1849, IredellReding and wife, Nancy, conveyedhis Duplicate Headright Certificate for one leagueand
one labor of land, as issued by ThomasWilliam Ward, Commissionerof the General Land Office,Hon. Bascom Giles, Page 4 - v-1438

on June 12, 1843, toWilliam M. Love, by Instrumentwhich is now filed in the General Land Office;

"That on November 18, 1859, J.M. Eliot, County Surveyor of Navarro County resurveyed the large surveymade by virtue~of said Duplicate Certificate l/100, and compiled corrected fieldnotes thereof, showing same to consist of 17,402,619 square varas of land,which corrected fieldnotes were recorded in his office and then transmitted to the Land Office, where theywere received and filedDecember 15, 1859, and said field notes now bear the followingpenciled endorsement, sThissurvey does not agree with the surroundingsurveys and appears to conflict with John White ptd.survey,July 22/87. C.W. Pressler;'

"That Section 2 of Cha 3ter'84,of an Act passed February 13, 185 , (4 Gam. 137) states in part, 'Thatsaid Commissioner be, and he is hereby authorized and required to issue a patent to Iredell and Nancy Reding, for one league and labor of land, on the location and surveymade by virtue of said Iredellss Headright Certificate;'

"That the filewrapper in the Land Office containing thepapers pertaining to the said IredellRedding's Surveys in Navarro County, bears the following endorsement, 'Certificaterejected by the Traveling Board - the Legislature cannot legalize it, though they have passed an Act for that
%Yosey - see SpecialActs of 1854, Page See also Section 2, Art.10, State Constitution;l

"Thatby an Act approved February 8, 1860 (5 Gam.196) the Legislatuce of the State of Texas, stated that certaindescribed land lying in Navarro County on thewaters'ofHon. E&scorn Giles,'Page 6 - v-1438

An Act of the 4th Congress of the Republic of Texas,R.S.l840,,atpage 139,provides in part:

"Sec.1. Be it enactedby the Senate and House of Reuresentatives of theReuublit of Texas, in Congress assembled, That there shall be electedby joint 'voteof both Houses of Congress, three Commissioners, whose duty,it shallbe to visit each county in theRepublic, the county seat of which is east of the Brazos river; and, also, tHree other Commissioners,whose duty~it shall be to visit each county, the county seat of which is west of theBrazos river; and, in conjunctionwith thr'ee County Commissioners, to be elected in like manner by Congress, from the respective counties for which they are to act, to inspect the records of the Boards of Land Commissioners,and ascertainby satisfactory testimonywhat certificates for land have been issued by the respectiveboards to legal claimants,and report as soon thereafter as practicable to the ,Commissioner of the General Land Office, such certificates
as they find to be genuine and legal setting forth in their reports thenumbdr'and date of the certificates,the quantity of land, and the name of theperson to whom issued; in which report, at least two of the General Commissionersand two of the County Commissionersmust concur.
"Sec.4, Be it further enacted', That it shall be the duty of the Commissioner of the General Land Office, upon the return of
a surveymade In accordancewith law, and by authority of any certificate that shall be returned as genuine and legal by the Commissioners appointed by this act, and as requiredby thisAct, to make **out** and deliver to the rightful owner a patent for the same,unless it shall appear from the records of his office,
or from information, on oath, given him, that there is some illegality in the claim; in such casehe shall refer thematter to theHon. Bascom Giles - Page 7 - v-1438

Attorney General,whose decision in writing shallbe sufficientauthority for ,himto issue or withhold the patent as the case may be.

“Se’c .5. Be it further enacted,That theCommissioner of the GeneralLand Office is herebyprohibited from issrl%cgZ patent 'uponany survey that shallnot have been or may hereafter be made by authority of a certificatereturned as genuine and legal by the Commissioners appointedby thisAct, or by authority of a warrant issued for military services, after the same shall have been presented to, and approved by the Secretary of War; or by authority of a certificate issued by special act ofCongress; and any patent issued contrary to the provisions of this act, shallbe null and void, and the Commissioner of the GeneralLand Office issuing a patent contrary to the provisions of this act, shall be deemed guilty of a high misdemeanor, and on conviction thereofbefore the District Court, shall be fined in a sum of not less than five thousanddollars, unless theperson claiming such patent shall produce to the Commissioner of the General Land Office, the judgmentor decree of a District Court of thisRepublic, fromwhich
no appeal was takenwithin the time prescribed by law, thathe is justlyentitled to the amount of land under the Constitutionand laws of thisRepublic."

The Commissionerselected under the above statute examined the certificateof Iredell Redding and disapproved it,

The General Land Office issued a 'duplicatedertificate,No.l/lOO, to Iredell Redding for,the lost certificate Number 136. The duplicate certificate, issued in 1843, could conferno rights other than those given by the original certificate. Texas Land and Mortg.Co. v. State,23 S.W. 258 (Tex.Civ.App.1‘892, error ref.).

If Redding acquired no right by the issuance of the duplicate certificate,his conveyance of this certificate toWilliam M. Love would vestno right inHon. Bascom Giles - Page 8 - v-1438

Love. Nor would the surveysmade'for Love under the duplicate certificateand his payments of dues create any right in him.

Section 2 ofArticle XI of the Constitution of Texas (1845)provided:

"Sec.2. The District Courts shallbe openeduntil the first day of July, one thousand .eighthundred and forty-seven, for the establishmentof certificates forWadrights,not recommendedby the Commissioners appointed under the act to detect fp?audulent land certificates,and to provide for issuingpatents to legal claimants; and the parties suing shallproduce the like proof, and be subjected to the requisitionswhich
were necessary, and were prescribedby law to sustain the original application for the said certificates,and all certificates above referred to, not established or sued upon before theperiod limited, shall be barred, and the said certificates,and all locations and surveys thereon, shall be forever null and void -- and all relocations made on such surveys, shallnot be disturbed until the certificatesare.establishedas above directed."

Neither Redding nor Love having gone into courtprior to July 1, 1847, to establish the validity of the headright certificate, their claimwas cut off by the terms of the Constitution,and no patent couldbe issued under the headright certificate.

Section 2 of an Act of the 5thLegislature, 1854, chapter 84, page 137, provided in part:

"That said Commissionerbe, and he is hereby authorized and required to issue a patent to Iredell and Nancy Reding, for one league and labor of land, on a location and surveymadeby virtue of said Iredell's headright certificate."

In view of the above provision of the.Constitutionof 1845,
we are of the opinion that thisAct of 1854was unconstitutional.Hon. Bascom Giles - Page 9 - v-1438

.,C~hapter

133, Acts o,fthe 8th Legislature, 1859, page 156, provid,es inapart:

'AnAct relinoufshink the right of the State'to certain lands thereinnamed toWilliam M. Love of Navarro County Texas. ,'

"Section1. Be it enactedby the Legislature-

of the State of Texas, That the followingdescribed land 1tin.g in Navarro Counxy, Texas, on thewaters of Richland creek, comprising one league and labor of land is hereby donated to saidWm. M. Love and all the rights, ,title, and interest of the State in and to said land is hereby relinquished to saidWm.M. Love, said land is embraced in two surveys, the first ofwhich is bounded and described
as follows: 0

. e
II e

. DAnd the State of Texas hereby relinquishesall her right and title in and to the above described land to the said William M. Love, of Navarro County, Texas."

This grant by the Legislature, if valid,would, be sufficient in itself to pass full title out of the State to the subject land and vest it in William M. Love, and the issuance of a patent thereonwould be unnecessary and without effect. On the other hand, if the legislative grantwere invalid, thenno title passed to Willfam M. Love by virtue thereof,and the issuance of a patent on these lands would be unauthorized. It is our opinion, therefore, that the Commissioner of the GeneralLand Office is not authorized to issue
a patent on the above land.

SUMMARY

The Commissioner of the General Land Office has no authority to issueHon. BaacornGiles - Page 10 - v-1438,

a patent on landwhich was the subject of an express grant by the Legisla,ture

in 1859, regardless oftthe validity or invalidity of the legislative grant.

APPROVED:

Jesse P. Luton, Jr. Land'Ditislon

E. Jaco@3on Heyiewlng *B8l&tint

Charles Q.~Hathews First Assistant Yours very truly

PRICE DANIEL Attorney General

BY Robert H. Hughes

Assistant
RHH,:bt