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
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