Honorable Jerry Sadler Opinion No. C-478

Commissioner General Iand Office Re: Whether surface lease for Austin, Texas a term exceeding ten (10) years on land being purchased underVeterans8 Land Program is in violation of Section 17, Article 5421m, V.C.S., and if so, is the Dear Mr. Sadler: leasevoid or voidable. Your recent letter requests our opinion as to the above stated questions relating to land being purchased from theVeterans' Land Board. Pertinentportions of Article 542l.m, Section 17, Vernon's Civil Statutes, are set forth as follows:

"Section 17. The sale of all lands hereunder by theBoard may b properly initiatedby CONTRACT OF SAG AND PURCBASE

. . .wrovided further. that wrowertv sold' under the provisions of thisAct-may-be transferred, sold or conveyedat any time after the entire indebtednessdue the Board

. under the contract of sale is paid, theBoard shall execute a deed under its seal to the originalpurchaser of the land or to the last assignee whose assignmenthas been approved by the Board.
. . . (EmphasisAdded.)

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It is presumed for purposes of this opinion, that the lease in question relates to landpresentlybeing purchased undera contract of sale and that a conveyance of theproperty to the veteran has not occurred,although itwas not so stated in your letter. It is stated in 58 Texas Jurisprudence Second 208, Vendor and Purchaser,Section 2, that:

"A contract to sell real estate is an agreement for a sale in futuro, either absolutely or on the happening of some contingency or the performance of some condition. A transaction for the purchase of realtywill therefore be held tobe a contract to sell rather than a sale, if
. . . thepurchaser does not presently acquire a complete and indefzasible title to the propertypurchased,
. . . The veteranis~~~ldingpossession of the land under a contract of 'salewith legal title remaining in theVeterans' Land Board, an agency of the State of Texas. The property has not been deeded to the veteran, but will be conveyed when the entire indebtednesshas been paid. We hold that the ownermay limit the use of the property and that the lease in question is illegal. "Contractsthat are directly and expresslyprohibited by a valid statute couched in unmistakable languageare absolutelyvoid." 13 Tex.Jur.2d 361, Contracts, Sec.2;zg; Hennessy v. Automobile OwnersAssn.,
__ Tex. -, S.W. 791 (1926);47 A.L.R. 521. The lease is illegaland void since it contravenes a valid statute. Woolsey v. PanhandleRefining Company, 131 Tex. 449, 116 S.W.2d b75 (1936). Black's Law Dictionary defines a voidable contract as, "onewhich is void as towrongdoer but,,not void as to wronged party unlesshe elects to so treat it. A void contract is defined as, "onewhich never had any legal existence or effect, and such contract cannot in any manner have lifebreathed into it." In the case of a voidable contract, there,,is usually both a power to avoid and a power to validate. Corbin on Contracts,Vol. 1, Sec. 6, p. 11.

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The statute doesnot provide for ratificationor validationby theVeterans' Land Board of a surface lease in excess of ten (10)years and, therefore, the lease in question is a void agreement.
SUMMARY A veteran cannot give a valid lease on the surface of landbeing purchasedby contract of sale under Article 542lm, Section 17,V.C.S., in excess of ten (10)years, and if he does so, the lease is void. Yours very truly, WAGGONER CARR Attorney General of TexaC; ,-,

Assistant CIS:afg APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Milton Richardson David Longoria Phillip Crawford Harold Kennedy APPROVEDFOR THE ATTORNEYGENERAL By: T. B. Wright

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