Untitled Texas Attorney General Opinion

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