OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Bonorable tiasoom GLles , Gusmissioner
General Land orfice
Aus tin, Texas
Dear Siri opinion ITO. o-4671
Re: Forecl?sure by
We acknowledge rob
1942, giving certain facts an
~-on Septealbe* 24 te of Texas awerded
to J. Y. Hale Seation ~OO,G.~.& S.P. Ry.
co. lanaa, eon San, Augustine ~Cotmty~,
Texas,’ This 1 ~agricultural~ classifi-
cation; wbrei ..no interest in the
miner&.
e inkoatu thgt Mr. Hale
land that he had purahased.
d principail balance of
srest'aooumulation of ,$1,426.01.
aoe estate to Mr. D. M. Hen-
eve mentioned indebtedness. Mr.
a third parsoi~ may pay the oblige-
xas and that the State of Texas
liens and remedies in aooord-
ticli 5328, Revised Civil
erstood that this third person will insti-
sure proosedings against Mr. Henderson as the
owner cb the surfaoe end against those persons holding
deeds to the mainera estate.
Wmr orfioial opinion is requested upon the follow-
ing question:
Honorable Bascom Giles, page 2
*If the State transfers all its rights, liens, and
remedies, in accordance with said Article 5328, can the
transferee file foreclosure proceedings and recover the
minerals aa well as the surface estate?”
Articles 5327 and 5328, Revised Statutes, 1925, read
as follows:
“Art. 5327. Lien
“To secure the payment of all prin6iml and interest
due upon any sale of public free school land, University
land, and the several asylums lend, the State shall have
an express lien ror the use aud benefit oi the fund to
whiah the lti belongs in addition to any right and remedy
that it has for the enforcement of the payment of any
principal or interest that may become due an4 unpaid.
“Art. 5328. !Pransfer of indebtedness
“If any ‘person, firm or corporatim of the Federal
Farm Loan Bank with the eonsent of the owner of any lands
mentioned in the preoeding article, pays to the State the
principal and interest due upon any obligation given for
such land, the Corrmissioner shall be authorized, upon
written request of auoh owner, duly aoknowledged In the
manner required for the oonveyanoe of real estate, ooupled
with an aff’idavit of ‘ownership, to exeout e, aoknowleQe
and deliver a written transfer of the indebtedness held
by the State to such person, firm or corporation or the
Federal Farm Loan Bank whioh shall thereupon be subrogated
to all the rights, liens an8 reuedies held by the State
to seoure and enrorce the payment on the amount of principal
end interest so paid to the State. Ii the land claimed by
the one representing himselr to be the owner should be
held under such evidenoe of titles as the law or rules of
the Land Orrioe will not authorize or permit to be i’lled
in said orfioe, then the Commissioner may admit. the owner
to be such perscm as the person, firm or oorporation or
the Federal Farm Loan Bank paying the indebtedness shall
admit to be the owner, and upon such admission the instru-
ment of transeer shall be exeouted. Nothing herein shall
ohange in any partioular whatever, the law .or rules that
obtain in the Land Ofrioe relative to titles to land end
the issuance of patents thereon.”
Honorable Basoom Giles, page 3
Poe answer your question in the affirmative but we
doubt whether the Ccwmissioner has authority under. Article -
5328 to transfer the State's indebtedness under the olrcum-
stances stated in your letter. The owner of the minerals is
an owner of land in the same sense that the owner of the
surface estate is en ouner or land. 31 Texas Jurisprudenoe 557.
If both owners, where a8 in your case the mineral and surface
estates are separately owned, oonsent to a third person paying
the State's indebtedness and both owners agree by "written
request . . . duly acknowledged in the manner required for
the conveyance of real estate, coupled with an affidavit of
ownership" to a transfer of the State7.s lien to such third
person, we are of the opinion that suoh third person is
"subrogated to all the rights, liens and remedies held by
the State" and can enforce suoh rights, liens end rauedles
against both the mineral and surfaoe estates by foreclosure
proceedings in a court of competent jurisdiction. If the
owner of the mineral estate does not consent to the payment
of the State's indebtedness by a third person and the transfer
of the Statets lien to such person, it is our opinion that the
Commissioner ~oould *ot lawfully transfer any lien against the
mineral estate to suoh third person and consequently no third
person could foreolose against the mineral estate.
The faot that there may have been a default on the
part of'~the owner of the mineral estate in the payment of the
debt due the State does not ipso facto canoelhhhsscoontraot.
Texas Jurisprudence states the rule as follows:
*A failure to pay installments which are due under
the contract oonoerns the State only;subjecting the
rights of the purchaser to forfeiture; but, until forfeiture
has been exacted by the Land Comaissioner in the manner,
speoi;ied by law, the purohaserls title is not affected.
. l 34 Tex.Jur. 174, 175. -.~
.
Trusting that this answers your inquiry, we are
Very truly yorirs
AlT~GRWREUiL~F~
FD:db
By (Signed) FAGANDIfXSON
APPROVp;D
JUL. 17, 19462 Assistant
(Signed) GRRAIJIC. MANN
Attorney General of Texas
APPRovEiD JUL. 17, 194.2
(Signed) GERALDC. WARN
Attorney General of. Texas
APPROVEDOpinion c;ommittee
By B.W.B. Chairman