Hon. Rascom Giles 

Commlssioner 

General Land Office 

Austin, Texas 

Opinion No. V-1441 

Re: Reinstatement of a 

forfeited School Land 

Purchase, Contract by 

one claiming title ,by 

virtue of a tax judgment and 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 a forfeited School Land 

Purchase Contract by one claiming title' 

by virtue of a tax judgment and deed, 

both executed prior to the forfeiture of 

the purchase contract by the Commissioner 

of the General Land Office." 

Public land dbdicated~to the use and benefit 

of the permanent free school fund, is not taxable by any 

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,, 15 Tex. 

453 (1855). 

However, by Article 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 a lease for a 

term of three years or more, or held under 

. 
Hon. Bascom Giles - Page 2 - Vl441 

a contract for the purchase thereof, 

belonging to this State, or that is exempt by 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 law 0 s . .‘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 

a purchaser under a School Land Purchase Contract, it 

must follow that the right to enforce payment of such 

taxes also exists In the taxing authority. 

That such an interest is subject to sale 

under execution was determined in Martin v. Bryson, 

71 S.W. 615 (Tex.Civ.App.1902, error ref.). In so 

holding, the court adopted the following statement from 

the second edition of Freeman on Executions: 

“So one who purchases lands from a 

state under a contract which provides for 

certain payments, upon the making of which 

he will become entitled to a patent, and 

upon default in any of which he forfeits 

all rights under his contract, has a vendible interest In such lands prior to their 

forfeiture, and one which is subject to 

execution. The estate acquired under the 

levy on an execution is, of course, no 

better or more certain estate than that 

held by the judgment debtor, and remains 

liable to be defeated by the same execution sale. 0 . 0” 

The court then held as follows: 

“We therefore conclude that as the 

interest of the appellee, Bryson, in this 

section of land, was such as he could sell’ 

to any person who would buy, regardless of 

whether such person occupied the land afterwards or not, it was a vendible interest 

and was subject to execution.” 

. 
Hon. Elascom Giles - Page 3 - V-1441 

In Danciger v. State, 140 Tex. 252, 166 S.W. 

2d 914 (1942), land held under a School Land Purchase 

Contract was said to be subject to sale under a judgment for taxes due against it. 

It is well settled that under a School 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 99 Tex. 468, 90 s.w.1087 

(1906); State vi Elza, 109 Tgx. 256, 206 S.W. 342'(1918); 

Perez v. Canales, 69 Tex. 674, 7 S.W. 507 (1888). 

.~~ Where execution has been had for delinquent 

taxes on land held under such a purchase contract, the 

effect of a valid tax sale and deed is to divest the 

__ tax debtor of all right, title,. and interest in and to 

the land described therein and to vest such right, 

tit1t3, and interest 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 any portion of the interest on 

any sale should not be paid when due, 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 and all payments shall be forfeited 

to the State, and the lands may be offered 

for sale on a subsequent sale date. In any 

case where lands have heretofore been forfeited or may hereafter be forfeited to the 

State for non-payment of interest, the purchasers, or their vendees, heirs or legal 

representatives, may have their claims reinstated on their written requestby paying 

into the Treasury the full amount of interest due on such claim up to'the date of reinstatement , provided that no rights of 
Hon. Bsscom Giles, Page 4 - V-1441 

third persons may have 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. . . .' 

We have found no Texas cases defining the 

limitations of the last-quoted sentence. However, 

It is well settled that statutes providing for forfeiture of rights under School Land Purchase 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, 

29 S.W.2d 1021 

119 Tex. 189, 2 L 

Tex. Comm. App.1930); Cruzan v. Walker, 

S.W.2d 908(1930); Mound Oil Co. v. 

Terrell, 99 Tex. 625, 92 S.W. 451 (1906). 

699 

fore 

In Brooke v. Eastman, 17 S.D.339, 96 N.W. 

(1903),the Supreme Court of South Dakota had beit a statute providing for the purchase of public 

lands of South Dakota. After setting forth the conditions to be met ky 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 a patent for the land 

herein described. . 0 ." (Emphasis added;) It was 

held that the interest of such a purchaser 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 a patent 

to the lands so sold to him upon payment of the balance of the purchase price. 

In view of the foregoing, and based upon the 

assumption that the tax judgment and deed were valid 

in every respect, it is our opinion that a claimant under such a valid tax judgment and deed executed before 

forfeiture of the purchase contract is within the class 

of persons having a right of reinstatement under 

Article 5326, V.C.S. 
Hon. Bascom Giles - Page 5 - V-1441 

SUMMARY 

A claimant under a valid tax 

judgment and deed executed before 

forfeiture of the purchase contract 

has the right of reinstatement of a 

;~;k;;ited School Land Purchase Con- 

. 

APPROVED: Yours very truly 

Jesse P. Luton, Jr. PRICE DANIEL 

Land Division Attorney General 

Mary K. Wall 

Reviewing Assistant 

Charles D. Mathews 

First Assistant 

WHR:bt 

9y $fJtdaAxI+ 

William H. Holloway 

Assistant 

I