-   ,




               OFFICE   OF THE AWORNM      GENERAL     OF TEXAS
                                 AUSTIN




        ,ionor:bleBascom Giles
        Comnissioner, General Land Ofi'ice
        Austifi,Texas

        Dear Sir:                Opinion   iU0.   O-3758
                                 ,ie:   ilightof lessee under "delinquish-
                                        ment Act" lease t
                                                             r lease for-


                                        executed a
                  This will ackn
        July 11, 1941, wherein y
        cartmeritupon the ouesti
        +ote    iron your 1
                                                            a feme sole,
                                                   leaze coverin? said




                         lifford Ashton.
                    "On Karch 25, 1938, Clifford Ashton paid into
               tllisoffice 3165.00 as bonus on said lease 23272.
Honorable Bascom Giles, Page 2


         "On April 6, 1938, this lease was endorsed
    as forfeited by Bert V. Bollin-.er,then Acting
    Commissioner, on the ground of non-payment of
    rentals. You will notice that tnis lease was
    not effective until June 2, 1937. Avparently
    tilefirst rental date would be June 2, 1+38.
         "After the forfeiture, Glenn 0. Asiltonand
    Krs. Dora Roberts, both feme soles, acting in-
    dividually and as agents for the State of Texas,
    executed a private oil and gas lease on this
    land to Clifford Ashton for a primary term of
    10 years. This lease was filed in the Land Office
    April 15, 1938, and a bonus of $054.00 was paid
    thereon.
          %r. Clifford Ashton has requested of tilis
     office a refund of eitner the $100.00 bonus paid
     under leese 23272?_wnich was forfeited on April
     6, 1938, or tne $0>4.00 bonus paid under tne lease
     executed April 6, 1938, on the grounds that he is
     being forced to pay two bonus payments on what
     amounts to the same lesse, and that tne forfeiture
     of tileori@al   lease was errone,ousfor tiierzsso.1
     that rentals w5re zot yet due t:iereonat trie ti;ile
     of forfeiture.
          "1 wouid appreciate the benefit of your opinion
     upon the following question:
          "IS Clifford Asnton entitled to a refund of
     eitner of the above mentioned sums according to
     the facts set out herein?"
           You enclosed a photostatic copy of Lease No. 23272,
wilich we have examined in connection with your request. We
acknowledge receipt also of your certificate stating tne facts
outlined in your letter.
          YOU do not so state, but it is apparent from the
facts contained in your letter that the tract of land involved
is public free school land sold by the State to Glenn 0.
Ashton, or her DredeCeSSOr in title, under a mineral classi-
fication. The minerals in and under school land, which was
rionorableBascom Ciles, Pa,ge3


duly classified as mineral land by tne Commissioner orior
to sale, are reserved to the school fund of the State. See
Article 5310 R. C. S., 1925.
          We shall hereai'terrefer to the 1 ase filed in
the Land Office on Karcl;25, 1?38, as the first lease and
to the lease filed tnere on April 15, 1938, as tne second
lease.
          Without going into the validity or propriety of
tne Commissioner's action in forfeiting tne first lease, we
are of tne opinion that he may not return any of the funds
paid into tilescnool fund under eitner of tne two ieases in
question.
        * The Commissioner qf tne General Land Office has
only sucn powers as are conferred upon nim by the Gsnstitu-
tion and Statutes. See Article 5251 and 5307 (ii.C. S.
1925); 34 Tex. Jur. 31; and cases cited.
            "No authority can be exercised by the iommissioner
of tne Cen,srs~l Land Cffice except such 3~sis c:nfer:ed 7n
I;I;!;
     bT,l
        : rJ.1.;.
             11 Sc,-tEy. .Qbi.;;,>:l,
                                   117 ':2x.3!32, ji; J. .;. (2ri)
232, 297.
          iVeheve diligently examined tne Constitution and
Statutes of tilisState and nave found no provision which
autnorizes the Commissioner to return the money in question.
          Article 5411 provides for the return by the comp-
troller of money wnich "has been in good faith paid into the
State Treasury upon lands for taxes, lease and purchase money,
for wnich, on account of conflicts, erroneous surveys, or
iliegal sales, patents cannot legally issue" or upon wnich
patents are legally cancelled.
          The article cle.?rlyapplies only to situations
wnere the State could not or did not vest leTa title in the
purchaser of land and is so limited in its scope. It neitrier
covers tne situation you outline expressly nor does it im-
pliedly extend to it.
           Although, we consider what we have stated a suffi-
Honorable Bascom Giles, Page 4


cient bar to a return by tne Commissioner of either sum to
the lessee, we wish to mention anotner factor in the partic-
ular transactions you have outlined, which would prevent a
recovery by the lessee.
          When the forfeiture of the first lease occurred,
the lessee had the right to compel the commissioner, if that
official had acted erroneously, to re-instate the lease. 34
Tex. Jur. 31.
          Instead of pursuing the remedy provided by mandamus,
the lessee under the facts you have submitted proceeded to
secure the second lease and to file same with the Land Office.
This second lease could have had no vestige of validity so
long as the first lease was valid and outstanding. The lessee
must, therefore, be held to have acquiesced in the forfeiture
by the Commissioner. See 'Wattsv. Cotton, 26 Civ. App. 73,
62 S. W. 931.
          In the case cited above, there was involved an app-
lication for a grazing lease on certain school land under the
provision of Sayles'_Ann. Civ. St., Art. 4218r and 4218s, now
Article 5336, 3. C. a., 192j. Tnis application was erroneous-
ly rejected by the Commissioner and the Court of Civil Appeals
disposed of the question in the following language:
          ". . . For correction of tnis error he (the
     applicant) doubtless had a remedy by mandamus against
     the commissioner of the general land office; but, so
     far from pursuing that remedy, he must be held, under
     the facts of this case, to have acquiesced in the
     erroneous ruling of the commissioner, however, much
     he may have dissented from it, . . ." Watts v.
     Cotton, supra.
          In Borchers v. Mead (Civ. App. 1897) 43 S. W. 300,
error denied, the court had before it the status of a grazing
lease wnich had been erroneously cancelled by the Land Commis-
sioner. The validity of a~award of school land hinged upon
the effect of the cancellation of the prior lease, -- if the
cancellation was invalid, the award was void.
honorable Bascom Ciles, Page 5


          tioldingthat the award was valid and binding, the
court of Civil Appeals declared that even though it be granted
that the lease, under the facts, should not nave been cancelled,
"It is yet clear that it was in fact canceiled." Tne lease,
having been eliminated by the cancellation, it was held to
constitute no bar to the validity of tne award.
          Under the same reasoning, tne first lease to kr.
Asnton having been forfeited, the second lease must be held
valid under tne facts you have submitted.
          Tileendorsement of forfeiture placed upon.the first
lease by the Commissioner and the acquiescence in that action
by the parties to the lease as shown by Weir imediately
entering into a new lease and by tleir not exercising tneir
remedy of mandamus, effectively terminated the first lease,
so far as the lessee was concerned. There can, therefore,
be no question as to return of tne bonus paid on tne second
lease.
           We are also of the opinion tnat the iessee is in
no nosition to demand a return of the bonus paid on the first
lea&.   Ti:at1e;se b:as executed on June i, 1930, a~r.d
                                                      recited
tn;t it ~;;a;to run for r term 01'ten years frcm June 2, 1'237.
Tne lease was forfeited on knril 6, 1939, by the Land Commission-
er. It is tnus apparent tnat that lease was outstelding, cn-
forfeited, for more than twenty-two months from tne date of
its execution, and for more than ten months after the date it
was to t&e   efr'ect. Even viawinr the situation in the li.ght
contended by the lessee, that is; tnat the iease was not per-
mitted to remain in effect for a.1entire year after June 2, 1337,
the fact remains tnat it was outstanding, unforfeited, /or
subatantiaily one yeer froratne dzte it purported to become
effective. Clearly, under these fects, the lessee would not
be entitled to a return of the $460.00 bonus.
          hOWeVer, we are not willing to concede tnat tne COUi-
missioner acted erroneously in forfeiting tnat lease on April
0, 18938. On tilecontrary, it is our conviction tnat trie COIli-
missioner's action was proper and timely, for the reasons
wnicn we shall now point out.
Honorable Baroom Oiler, Page 6


          We quote from the deferred rental olausb of the
lease dated June 1, 1936, ea follows:
          "If operetlone for the drilling of 8 well for
     011 or ge8 er8 not oommeno8d on said land on or     -
     before on8 Yeal'f'rO8i
                          this,dets, this 18888 Sba11 ter-
     minate 88 to both pert.188,un1088 the 188880 8ha11,
     on or berore one mar from this date, pay or tender
        the lessor or f   the le88Or'8 oredit in the
     l&nt State Bank eot1‘GoldthweiteTexas * l itthe
     sum of fifty aents rental per a&e, Which 8h8ll
     operate 88 rental end aOver the privilege of defer-
     ring aomm8naament of drilling operations for a per-
     iod of on8 gear." (mphaSi8 Supplied.)
          Unquestionably, under the authorities, the date r8-
ferred to in ths underlined phrases of the quoted portion of
the lease, is the date upon whlah the lease we8 executed.
                                                            -
          The phreso "thl8 date", appearing In a written ln-
strument, refer8 to the date of execution of the Instrument.
It has the same meaning es "the present date." Covey v. Town
of Waynoke, 284 P. 293, 294, 141 Okl. 154; Harlfsonv. Reed,
1fl.P. 159, 160, 81 Okl. 149; 41 Words & Phrases (Perm. ed.)
583, 584.
          A lrimllarbxpr888lon, "thi8 day", ha8 been held to
refer to the time the writi   was entered into by tha parties.
Renshev v. FIrstHat. Bank, Tonn.) 63 9. W. 194.
          The detb upon whloh'ths in8trUIMit was entered Into
IS set out in the first peragreph of the lease, whlah we quote
a8 r0im8:
             "ThiS agreement mede end entered into the 1st
     ?k$%%        ~t~?C&$~T~~~?              kkiE%r
     called le88&  l f +   and Cllf&d   Ashion
     hereinafter a8118&1~8888."   (F4nphesls8uip;iidT)
          It 18 ObViOU8, there&e,   that mder the express
term8 of the 18888, the first rental v88 due and peyabl8
one year after June 1, 19%   being June 2, 1937, end that
8uoh payment 1188more than kan months past due on April 6,
1938, when the Commlssloner forfeited the lease.
Bonorebl4 h8Oa       Qi148, Pago 7

          We fllldno language In the InrtrmPlentvhloh -7
be oon8tru4d a8 making ruoh reohl dw and payable one yen,
after the date the lea84 war to go Into 4ffeot. I? th4
parties Intended that the flrrt rental war to beoome due one
ywr after the alleged erreotlve date, they have not eXpF4884d
8uoh Intent In the ln8trument.
          The only portion of the lease which oontaln8 language
r4ferrlag t0 the elleg4d 4??4&lve date IS the ?ollovlng pare-
graph, vhloh v4 quote:
               "The said 148aor, Glenn 0. A8hton, being agent
      for the Stat4 of Texa8, In the leasing of 8eid lands;
      and It 18 iurther egr44d that  thl8 lease 8he11 run
      for a term of ten year8 f'rozqthe expiration o? the
      original lease, held by the Amerada Pet. COrpOrStlOn,
      vhloh expireson June 2, 1937."
          This paragraph Is susaeptlblso? the Interpretation
that It merely sets out the term of the lease and not its
effective date. It doe8 not 8tate dsflnltely that June 2,
m     IS the effective date of the lease.
          However, granting that the part148 Intended that
the lea84 go into ef?eat on that date, the lnatrument no-
where declares that the deferred rental payments should date
iromthattime.
          The unexpressed Intent of the parties cannot SuPPlSnt
the aleer Intent stated In the Instrument. Per01 evidence
elluude oennot very the express terms of the instrument. 17
Tex. Jur. 862, Sea. 391.
          It 18,therefor4, the opinion of this department
end you are 80 advl84d, that Clifford Ashton is entitled to
neither of the refund8 he 418im8.
               Trusting that we have fully answered your Inquiry,
we are
APPROVED AU0 7, 1941                 Your8 very truly
/8/   Grover    Seller8         ATTORNEY GENERAL OF !i?EXAS
FIRST ASSISTANT                 By   /(I/Peter Manlsaeloo
ATTORNEY GERERAL                          Peter Manl8aeloo
                                                 A88i8t8llt
PM:lh
                      APPROVED OPINION coMMITTEE
                      By B. 0.    Chairmen
