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 certain notations 

appearing on the file jacket and references 

there made, it appears dou,btful that such 

patent may issue. 

"Your opinion 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 certificate of facts accompanying your request relates: 
Hon. Bascom Giles, Page 2 - V-1438 

"That on May 1, 1841, the Traveling 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 Brazes River, reported that 

it investigated the claim of Iredell Redding, by virtue of First Class Headright 

Certificate No. 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 Certificate was not legal and 

genuine; 

"That on December 16, 1840, Iredell 

Redinq made verified affidavit that he was 

the owner of a claim for one league and one 

labor of land, issued by the Board of Land 

Commissioners of 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 ,that he had 

never sold, alienated or transferred same 

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, 'on Trinity as 

is supposed, that the said Certificate, as 

he believes, was lost at that time and that 

since lost he has neither known or heard of 

same since that time;' 

"That the District Court of Rouston 

County in the February term of 1838 in a 

case styled, Iredell Redding vs. the Land 

Commissioners of Houston County, 'ordered' 

by the Court that the plaintiff be allowed 

one league and one labor of land agreeable 

to the verdict of the jury;' 

"That on June 12, 1843, Iredell Redinq 

made verified affidavit that he had placed 

in the hands of Richard Sparks, his Headright Certificate for one league and one 

labor of land being No. 136, granted to him 

by the Board of Land Commissioners of Houston 
Hon. 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 ,since lost, he had 

neither heard of same and had advertised for 

same in accordance with 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 instruments recited in the two preceding paragraphs, are,now filed in the 

General Land Office; 

"That on,'April..25, 1850, William M. 

Lane, District Surveyor of Robertson Land 

District, surveyed a tract of 17,433,339 

square varas of land for Iredell R din 

V' 

by 

virtue of Duplicate Certificate No.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 they were received 

and filed, and Said field notes now bear 

the following endorsement, on the back 

thereof, 'Cancelled by 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 Duplicate Headright 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 

they were received, and filed and were approved 

as correct on February 9, 1852; 

"That on June 16, 1849, Iredell Reding 

and wife, Nancy, conveyed his Duplicate 

Headright Certificate for one league and 

one labor of land, as issued by Thomas William 

Ward, Commissioner of the General Land Office, 
Hon. Bascom Giles, Page 4 - v-1438 

on June 12, 1843, to William M. Love, by 

Instrument which is now filed in the General Land Office; 

"That on November 18, 1859, J.M. 

Eliot, County Surveyor of Navarro County 

resurveyed the large survey made by virtue~of said Duplicate Certificate l/100, 

and compiled corrected field notes thereof, showing same to consist of 17,402,619 

square varas of land, which corrected 

field notes were recorded in his office 

and then transmitted to the Land Office, 

where they were received and filed December 15, 1859, and said field notes now 

bear the following penciled endorsement, 

sThis survey does not agree with the 

surrounding surveys and appears to conflict with John White ptd.survey, July 

22/87. C.W. Pressler;' 

"That Section 2 of Cha 

3 

ter'84, of an 

Act passed February 13, 185 , (4 Gam. 137) 

states in part, 'That said 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 survey made by 

virtue of said Iredellss Headright Certificate;' 

"That the file wrapper in the Land 

Office containing the papers pertaining to 

the said Iredell Redding's Surveys in Navarro County, bears the following endorsement, 'Certificate rejected by the Traveling Board - the Legislature cannot legalize 

it, though they have passed an Act for that 

%Yosey - 

see Special Acts of 1854, Page 

See also Section 2, Art.10, State 

Constitution;l 

"That by an Act approved February 8, 

1860 (5 Gam.196) the Legislatuce of the 

State of Texas, stated that certain described 

land lying in Navarro County on the waters'of 

Hon. E&scorn Giles,'Page 6 - v-1438 

An Act of the 4th Congress of the Republic 

of Texas, R.S.l840,,at page 139, provides in part: 

"Sec.1. Be it enacted by the Senate 

and House of Reuresentatives of the Reuublit of Texas, in Congress assembled, That 

there shall be elected by joint 'vote of 

both Houses of Congress, three Commissioners, 

whose duty,it shall be to visit each county 

in the Republic, 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 the Brazos river; and, in 

conjunction with 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 ascertain by satisfactory testimony what certificates for land 

have been issued by the respective boards 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 the numbdr'and date 

of the certificates, the quantity of land, 

and the name of the person to whom issued; 

in which report, at least two of the General 

Commissioners and two of the County Commissioners must 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 survey made In accordance with law, and by 

authority of any certificate that shall be returned as genuine and legal by the Commissioners appointed by this act, and as required by 

this Act, 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 case he shall refer the matter to the 
Hon. Bascom Giles - Page 7 - v-1438 

Attorney General, whose decision in writing 

shall be sufficient authority for ,him to 

issue or withhold the patent as the case 

may be. 

“Se’c .5. Be it further enacted, That 

the Commissioner of the General Land Office is hereby prohibited from issrl%cgZ 

patent 'upon any survey that shall not have 

been or may hereafter be made by authority 

of a certificate returned as genuine and 

legal by the Commissioners appointed by 

this Act, 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, shall be null and void, and the 

Commissioner of the General Land Office issuing a patent contrary to the provisions 

of this act, shall be deemed guilty of a high 

misdemeanor, and on conviction thereof before the District Court, shall be fined in a 

sum of not less than five thousand dollars, 

unless the person claiming such patent shall 

produce to the Commissioner of the General 

Land Office, the judgment or decree of a 

District Court of this Republic, from which 

no appeal was taken within the time prescribed 

by law, that he is justly entitled to the 

amount of land under the Constitution and 

laws of this Republic." 

The Commissioners elected under the above 

statute examined the certificate of Iredell Redding and 

disapproved it, 

The General Land Office issued a 'duplicate dertificate, No.l/lOO, to Iredell Redding for, the lost certificate 

Number 136. The duplicate certificate, issued in 1843, 

could confer no 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 to William M. Love would vest no right in 
Hon. Bascom Giles - Page 8 - v-1438 

Love. Nor would the surveys made' for Love under the 

duplicate certificate and his payments of dues create 

any right in him. 

Section 2 of Article XI of the Constitution 

of Texas (1845) provided: 

"Sec.2. The District Courts shall be 

opened until the first day of July, one 

thousand .eight hundred and forty-seven, for 

the establishment of certificates for Wadrights, not recommended by the Commissioners 

appointed under the act to detect fp?audulent 

land certificates, and to provide for issuing patents to legal claimants; and the 

parties suing shall produce the like proof, 

and be subjected to the requisitions which 

were necessary, and were prescribed by law 

to sustain the original application for the 

said certificates, and all certificates 

above referred to, not established or sued 

upon before the period 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, shall not be disturbed 

until the certificates are.established as 

above directed." 

Neither Redding nor Love having gone into court prior to 

July 1, 1847, to establish the validity of the headright 

certificate, their claim was cut off by the terms of the 

Constitution, and no patent could be issued under the 

headright certificate. 

Section 2 of an Act of the 5th Legislature, 

1854, chapter 84, page 137, provided in part: 

"That said 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 a location and survey made by 

virtue of said Iredell's headright certificate." 

In view of the above provision of the.Constitution of 1845, 

we are of the opinion that this Act of 1854 was unconstitutional. 
Hon. Bascom Giles - Page 9 - v-1438 

.,C~hapter 133, Acts o,f the 8th Legislature, 

1859, page 156, provid,es in apart: 

'An Act relinoufshink the right of 

the State'to certain lands therein named 

to William M. Love of Navarro County 

Texas. ,' 

"Section 1. Be it enacted by the 

Legislature- of the State of Texas, That 

the following described land 1tin.g in 

Navarro Counxy, Texas, on the waters 

of Richland creek, comprising one league 

and labor of land is hereby donated to 

said Wm. M. Love and all the rights, ,title, 

and interest of the State in and to said 

land is hereby relinquished to said Wm.M. 

Love, said land is embraced in two surveys, 

the first of which is bounded and described 

as follows: 0 . e 

II e . D And the State of Texas hereby 

relinquishes all 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 thereon would be unnecessary 

and without effect. On the other hand, if the legislative grant were invalid, then no 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 General Land Office is not authorized to issue 

a patent on the above land. 

SUMMARY 

The Commissioner of the General 

Land Office has no authority to issue 
Hon. Baacorn Giles - Page 10 - v-1438, 

a patent on land which was the subject of an express grant by the Legisla,ture in 1859, regardless oft the 

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