Hon. Rascom Giles Commlssioner General LandOffice Austin, Texas Opinion No. V-1441

Re: Reinstatement of a forfeited School Land Purchase, Contract by
one claiming title ,by virtue of atax judgmentand 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 official opinion concerning the right of reinstatement of aforfeited School Land Purchase Contract byone claiming title' by virtue of a tax judgment anddeed, both executed prior to the forfeiture of the purchase contract by the Commissioner of the General Land Office."

Public land dbdicated~to the use andbenefit of the permanent free school fund,is not taxable byany 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,, 15Tex. 453 (1855).
However, byArticle 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 alease for a term of three years or more, or held under

.Hon. Bascom Giles - Page 2- Vl441

acontract for the purchase thereof, belonging to this State, or that is exemptby 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 provided by law0s

. .‘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
apurchaser under aSchool LandPurchase Contract, it must follow that the right to enforce payment of such taxes also exists In the taxing authority.

That such aninterest is subject to sale under execution was determined in Martin v. Bryson, 71S.W. 615 (Tex.Civ.App.1902, error ref.). In so holding, the court adopted the following statement from the second edition of Freeman onExecutions:

“So onewhopurchases lands from a state under acontract which provides for certain payments, upon the making of which hewill become entitled to apatent, and upon default in any of which he forfeits all rights under his contract, has avendible interest In such lands prior to their forfeiture, and one which is subject to execution. The estate acquired under the levy onan execution is, of course, no better or more certain estate than that held by the judgment debtor, andremains liable to be defeated by the sameexecution sale. 0

. 0”

The court then held as follows:

“Wetherefore conclude that as the interest of the appellee, Bryson, in this section of land, was such as he could sell’ to any person whowould buy, regardless of whether such person occupied the land afterwards or not, it was avendible interest andwas subject to execution.”

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In Danciger v. State, 140Tex. 252, 166 S.W. 2d914 (1942), land held under aSchool LandPurchase Contract was said to be subject to sale under ajudgment for taxes due against it.

It is well settled that under aSchool 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 99Tex. 468, 90s.w.1087 (1906); State vi Elza, 109Tgx. 256, 206S.W. 342'(1918); Perez v. Canales, 69Tex. 674, 7S.W. 507 (1888).

.~~ Where execution has been hadfor delinquent taxes onland held under such apurchase contract, the effect of avalid tax sale and deed is to divest the

__tax debtor of all right, title,. andinterest in and to the land described therein and to vest such right, tit1t3, andinterest 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 anyportion of the interest on any sale should not be paid whendue, the land shall be subject to forfeiture by the Commissioner entering on the wrapper containing the papers 'Land Forfeited,' or words of similar import, with the date of such action and sign it officially,and thereupon the land andall payments shall be forfeited to the State, and the lands maybe offered for sale onasubsequent sale date. In any case where lands have heretofore been forfeited or mayhereafter be forfeited to the State for non-payment of interest, the purchasers, or their vendees, heirs or legal representatives, mayhave their claims reinstated on their written requestby paying into the Treasury the full amount of interest due on such claim upto'the date of reinstatement
, provided that norights ofHon. Bsscom Giles, Page 4- V-1441

third persons mayhave intervened. The right to re-instate shall be limited to the last purchaser from the State or his vendees or their heirs or legal representatives.

. . .'

Wehave found noTexas cases defining the limitations of the last-quoted sentence. However, It is well settled that statutes providing for forfeiture of rights under School LandPurchase Contracts 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, 29S.W.2d 1021 119Tex. 189, 2L

Tex. Comm.App.1930); Cruzan v. Walker, S.W.2d 908(1930); MoundOil Co. v. Terrell, 99Tex. 625, 92 S.W. 451 (1906).

699 fore In Brooke v. Eastman, 17S.D.339, 96N.W. (1903),the Supreme Court of South Dakota hadbeit a statute providing for the purchase of public lands of South Dakota. After setting forth the conditions to bemetky 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 apatent for the land herein described.

. 0." (Emphasis added;) It was held that the interest of such apurchaser 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 apatent to the lands so sold to himupon payment of the balance of the purchase price.

In view of the foregoing, andbased upon the assumption that the tax judgment anddeed were valid in every respect, it is our opinion that aclaimant under such avalid tax judgment and deed executed before forfeiture of the purchase contract is within the class of persons having aright of reinstatement under Article 5326, V.C.S.Hon. Bascom Giles - Page 5- V-1441

SUMMARY

Aclaimant under avalid tax judgment and deed executed before forfeiture of the purchase contract has the right of reinstatement of a ;~;k;;ited School LandPurchase Con-

. APPROVED: Yours very truly

Jesse P. Luton, Jr. PRICEDANIEL LandDivision Attorney General MaryK. Wall Reviewing Assistant
Charles D. Mathews First Assistant

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William H.Holloway

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