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           Hon. Bascom Giles             Opinion Eo. s-66
           Commissioner
           General Land Office           Re: Assignabilityof a good
           Austin, Texas                     faith claimant'sprefer-
                                             ential right to !.urchase
                                             land under Section 6,
           Dear Sir:                         Article 5421c, V.C.S.
                    Your opinion request of June 4, 1953, reads
           aa follows:
                     "We desire the opinion of your office as,
                to whether or not a Good Faith Claimant's pre-.
                ferential rlght under Article 5421c, Section 6,
                V.A.C.S., is assignable.
                     "E. Ii.Schuoh, San Angelo, Texas, filed
                in the General Land Offlce on Febiwary 4, 1953,
                application to purchase certain land.In Coke
                County a8 a Good Faith Claimant under the pro-
                visions of an act approved June'lg, 1939. A
                portion of the area includedwithin Mr. Schuch's
                application is within the encloeure of adjoin-
                ing lands which he owns. However, other por-
                tions of the area in said applicationare out-
                side of Mr. Schuch',senclosure. Mr. Schuch has
                acquired assignmentsfrom the owners of the lands
                adjoining the balance of such alleged~vacancy and
                such assignmentsare limited to the area described
                in Mr. Schuch's application. There have been filed
                in this offlqe affidavits and supportinginstru-
                ments to the,effect that all of the alleged vacant
                area is includedwithin enclosures~  of Mr. Schuch's
                land and within the enclosuresofMr. Schuch's ae-
                signore.
                     "At the date Mr. Schuch's appiicatlon
                (S.F. 15495) was filed In this office, Feb-
                ruary 4, 1953, there was no well~produclng
                011 or gas within five miles of the area ln-
                eluded in said applicationbut a producing
                011 well baa been brough in since-thatdate.
                It has been the policy of this office to re-
                quire each land owner to make a separate
                Good Faith Claimant appllcatlon~on~thepor-
                tlon of a vacant area within hl&~enElonure..
                If this office approves Mr. Schuch's appli-
                cation for the entire area described in Euch
Hon. Bascom Glles, page 2 (S-66)


     application,the State will be entitled to
     reserve l/8 of the sulphur and l/16 of all
     other minerals as a free royalty to the
     State on the entire area. If, however,
     this office requires that each land owner
     file separate Good Faith Claimant appllca-
     tions at this date, the State will be en-
     titled to reserve a free royalty of l/8
     of the sulphur and all other minerals on
     those portions of said vacant area not
     within Mr. Schuch's enclosure.
          ,,
           . . .
          "Your opinion as to whether or not
     such preferentialrights are assignable
     prior to the possessors of such rights
     making applicationto exercise same la
     requested by this office In order that
     the proper mineral reservationto be re-
     served by the State can be ascertained."
          Under the provlslons of ArticIb 5421c,-V;C;S.,
a "good faith claimant" le given a prcferintlaI'~right
to purchase or lease unsurveged school land, commonly
called a "vacancy." Section 6(a) of said statute, omltt-
lng portions not material to this Inquiry, defines "good
faith claimant" as
          'any person . . . occupying or using,
     or theretoforeoccupying or using, or whose
     predecessors In interest,have occupied or
     used a vacancv . . . with a good faith be-
     lief that the-same was Included within the
     bounda;ya$    a survey . , . previously
     . . .         . . . . Provided a person
           or those under whom he claims, shall
     have'said land in his enclosure or under
     definite recognizedboundaries and be in
     possession thereof for . . . ten (10) years
     with a good faith belief that he was the
     owner . . . , except that whenever the owner
     of the tract . . . adjoining the alleged va-
     cant area makes applicationto buy . . .
     and no prior application . . . 1s on file,
     then such owner . . . who otherwise quali-
     flea as a good faith tilalmant,shall be
     considereda good~falth claimant' without
     regard to the length of time he maY~'have
     owned . . . or had such alleged vacant
Hon. Bascom Glles, page 3 (S-66)


     tract inclosed, or under definite recog-
     nized boundaries and in possession with
     the belief that the vacant area vas in-
     cluded within his survey." (Emphasisadded.)
          From the underlinedportions of this statute,
It will be observed that, with the exception below, an
assignee of a preferentialright in vacant lands, re-
gardless of his own good faith, will himself be a "good
faith claimant" If his predecessorsin interest held
such status. The exception is where the vacancy assign-
ee's status as "good faith claimant" depends on his own-
ing adjoining land and he owns none. In the latter case,
whatever rights he haa must be as assignee of a good
faith claimant, which requires considerationof whether
such rights are assignable.
          In Rone v. Buehn, 81 S.W.2d 194 (Tex.Cl~.App.
1935, error ref.) cited in Tour opinion request, a va-
cancg applicant filed his application,after which the
tract of which the vacancy was a part was sold along
with the preferentialright in the vacancy, and the
grantee thereupon filed his applicationunder the pro-
visions of the 1931 Act. In upholalng~the'~preferenti~1
right of the grantee or assignee to purchase, the court
said:
            "We think it conclusivelyappears
     that appellee's predecessor In title had
     a prior right of purchase, and that such
     right passed to appellee . . . .
            II
             . . . The fact that appellee may
     have thought that the strip was unsur-
     veTed school land when he purchased
     from Stolley could not affect his right
     of recovery; it appearing that Stolley's
     preference right to purchase passed to
     appellee. We think Stolley's preference
     right was an assignable one, and could
     be transferredto appellee. Stiles v.
     Hawkins (Tex.Com.App.)207 S.W. 89; Gun-
     nels v. Cartledge, 26 Tex. Clv. App. 623,
     :&f.;:    &&6i 34 Tax. Jur. p. 74. 5 Tex.
                     (81 s.W.2a at 1951
It la evident that the court in that case did not re-
quire the assignee to be a good faith purchaser. The
effect of the opinion is that the aaslgnee wae entitled
Hon. Bascom Glles, page 4 (S-66)


to stand in the shoes of his assignor,,
                                      who was a good
faith clalmnt.
            In Graham v. lie     17 Tax. 164, 167 (1856);
involving   an assigned   lan   rtiflcate, the court said:
             'Whatever exclusive right a man has
      In anything, he has a right to dispose of
      absolutely as he pleases, provided he makes
      no dl8pOsltion of It prohibitedbj law . . .
      Hence anr Incipient title or contingent in-
      terest   which is susceptibleof being ripened
      Into a title to lands may be asalgned; and
      such ha8 been the usage in this and other
      countries. It has never been supposed nec-
      essary to consunvnate  the title before the
      right could be assigned."
          We have consideredthe following portion of
Section 6(g) of Article 5421~:
           "El0title to either land or mineral
      interest In land acquired from the State
      under preference right shall ever be held
      to pass as an after-acquiredtitle by rea-
      son of any covenant of general warranty,
      descrlptlon,or other provision, contained
      In anj conveyance executed prior to the
      date of award under such preference."
However, Inasmuch as the asslgnec in this case is to
receive the award from the State, no "after-acquired
title" Is involved, and accordinglythis paragraph can
have no applicationhere.
          We find nothing in the 1939 amendment to Artl-
cle 5421~ (Acts 46th Leg., 1939, ch. 3, p. 465) prohlbit-
lng the assignee of a good faith clalmant from making an
application to purchase the vacant land covered by the
assignment and receiving an award thereof under this stat-
ute. It is our opinion, therefore, that under the above
authoritiesMr. Schuch succeeded to the rights of his
grantors or assignors and is entitled to purchase the en-
tire area described In his application under the provis-
ions of Section 6 of Article 5421~.
Hon. Bascom Giles, page 5 (S-66)


                     SUMMARY

          The preferentialright of a "good
     faith clakant" under Sec. 6 of Art.
     921c, V.C.S., is assignable. The asslgn-
     ee of a "good faith claimant,"regardless
     of his own good faith, Is himself a "good
     faith claimant" except In cams where the
     assignee's status of "good faith claimant"
     depends on his owning adjoining lands and
     he owns none.
APPROVED:                          Yours very truly,
                                   JOHElBEPISHEPPERD
                                   Attorney General
