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 in-
volved here . . , Due to certain notations
appearing on the file jacket and references
there made, it appears dou,btfulthat such
patent may issue.
"Your opinion Is necessary on account
of the conflicting views concerning the is-
suance 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 of-
flee."
The certificate of facts accompanying your re-
quest relates:
Hon. Bascom Giles, Page 2 - V-1438
"That on May 1, 1841, the Travel-
ing Board of Land Commissioners, appoint-
ed 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 Red-
ding, by virtue of First Class Headright
Certificate No. 136, issued to the said
Iredell Redding, by the Board of Land Com-
missioners 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 Cer-
tificate 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 Head-
right 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 ,sincelost, he had
neither heard of same and had advertised for
same in accordance with law, and enclosed a
newspaper clipping to such eff,ect,adver-
tising the loss of said Certificates, and
said affidavit and newspaper clipping, along
with the instruments recited in the two pre-
ceding 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 by
virtue of Duplicate Certificate No.1
V' 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 Robert-
son 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~ctober10, 1850, William M.
Lane, Deputy Surveyor of Robertson Land
District, sur,veyeda tract of 8,198,880
squa.revaras of land in what is now Navarro
County, for Ired,ellReding, 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 Gen-
eral Land Office;
"That on November 18, 1859, J.M.
Eliot, County Surveyor of Navarro County
resurveyed the large survey made by vir-
tue~of said Duplicate Certificate l/100,
and compiled corrected field notes there-
of, 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 Decem-
ber 15, 1859, and said field notes now
bear the following penciled endorsement,
sThis survey does not agree with the
surrounding surveys and appears to con-
flict with John White ptd.survey, July
22/87. C.W. Pressler;'
"That Section 2 of Cha ter'84, of an
Act passed February 13, 1853 , (4 Gam. 137)
states in part, 'That said Commissioner
be, and he is hereby authorized and re-
quired 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 Certi-
ficate;'
"That the file wrapper in the Land
Office containing the papers pertaining to
the said Iredell Redding's Surveys in Na-
varro County, bears the following endorse-
ment, 'Certificate rejected by the Travel-
ing Board - the Legislature cannot legalize
it, though they have passed an Act for that
see Special Acts of 1854, Page
%YoseySee-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&scornGiles,'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 Reuub-
lit 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'eeCounty 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 satis-
factory testimony what certificates for land
have been issued by the respective boards to
legal claimants, and report as soon there-
after as practicable to the ,Commissionerof
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 Com-
missioners 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 re-
turned as genuine and legal by the Commission-
ers appointed by this act, and as required by
this Act, to make out and deliver to the right-
ful 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.
.5. Be it further enacted, That
“Se’c
the Commissioner of the General Land Of-
fice is hereby prohibited from issrl%cgZ
patent 'uponany 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 certi-
ficate 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 is-
suing a patent contrary to the provisions
of this act, shall be deemed guilty of a high
misdemeanor, and on conviction thereof be-
fore 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 dertif-
icate, 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 origi-
nal 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 Wad-
rights, not recommended by the Commissioners
appointed under the act to detect fp?audulent
land certificates, and to provide for is-
suing 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 for-
ever 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 uncon-
stitutional.
Hon. Bascom Giles - Page 9 - v-1438
.,C~hapter
133, Acts o,fthe 8th Legislature,
1859, page 156, provid,esin 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.gin
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 legis-
lative 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. BaacornGiles - Page 10 - v-1438,
a patent on land which was the sub-
ject of an express grant by the Legis-
la,turein 1859, regardless oftthe
validity or invalidity of the legis-
lative grant.
APPROVED: Yours very truly
Jesse P. Luton, Jr. PRICE DANIEL
Land'Ditislon Attorney General
E. Jaco@3on
Heyiewlng *B8l&tint
BY
Charles Q.~Hathews Robert H. Hughes
First Assistant Assistant
RHH,:bt