Hon. Rascom Giles                    Opinion    No. V-1441
Commlssioner
General Land Office                  Re:    Reinstatement        of a
Austin,  Texas                              forfeited     School Land
                                            Purchase, Contract        by
                                            one claiming       title   ,by
                                            virtue    of a tax judg-
                                            ment and deed executed
                                            before    forfeiture      of
                                            the purchase       contract.

Dear Sir:

             Your request    for     an opinion     of   this   office
reads    in part as follows:

               "This department desires       your offi-
        cial   opinion   concerning    the right    of re-
        instatement     of a forfeited    School Land
        Purchase Contract       by one claiming     title'
        by virtue     of a tax judgment and deed,
        both executed     prior   to the forfeiture        of
        the purchase     contract    by the Commissioner
        of the General Land Office."

            Public land dbdicated~to         the use and benefit
of the permanent free school        fund, is not taxable     by any
taxing authority      so long as title     thereto,remains    in
the State.     Section   2, Article    VIII,    Constitution  of
Texas; Article     7150, V.C.S.;    Pitts    v. Booth,, 15 Tex.
453 (1855).
           However, by Article     7173, V.C.S.,    the State
requires  those holding~publlc     free school   land under
lease or oontract   of purchase     to pay taxes upon their
holdings.   That article   provides    in part as follows:

             "Property     held    under a lease for a
        term of three     years    or more, or held under

                                                                             .
    Hon. Bascom Giles     - Page 2 - Vl441



         a contract    for the purchase    thereof,
         belonging    to this State,    or that is ex-
         empt by law from taxation       In the hands
         of the owner thereof,      shall be considered
         for all purposes     of taxation,    as the
         property   of the person so holding        the
         same, except as otherwise       specially    pro-
         vided by law 0 s . .‘I

                The delinquent    taxes for which judgment and
    subsequent    sale were had herein undoubtedly     were levied
    under authorization      of the quoted provision.    Having
    the authority     to levy taxes upon the interest    held by
    a purchaser    under a School Land Purchase Contract,      it
    must follow    that the right    to enforce  payment of such
    taxes also exists      In the taxing authority.

               That such an interest   is subject    to sale
    under execution   was determined in Martin v. Bryson,
    71 S.W. 615 (Tex.Civ.App.1902,   error ref.).      In so
    holding,  the court adopted the following     statement  from
    the second edition   of Freeman on Executions:

                 “So one who purchases       lands from a
         state under a contract         which provides     for
         certain     payments, upon the making of which
         he will     become entitled     to a patent,    and
         upon default      in any of which he forfeits
         all rights      under his contract,      has a vendi-
         ble interest      In such lands prior       to their
         forfeiture,      and one which is subject       to
         execution.       The estate    acquired   under the
         levy on an execution        is, of course,     no
         better    or more certain      estate   than that
         held by the judgment debtor,           and remains
         liable     to be defeated     by the same execu-
         tion sale.      0 . 0”

    The court   then   held   as follows:

                 “We therefore    conclude    that as the
         interest    of the appellee,      Bryson,    in this
         section    of land, was such as he could sell’
         to any person who would buy, regardless              of
         whether such person occupied          the land after-
         wards or not, it was a vendible           interest
         and was subject       to execution.”


.
   Hon. Elascom Giles      - Page 3 - V-1441



              In Danciger  v. State,          140 Tex. 252, 166 S.W.
   2d 914 (1942),  land held under           a School Land Purchase
   Contract was said to be subject            to sale under a judg-
   ment for taxes due against   it.

               It is well settled    that under a School Land
   Purchase Contract    title   to the land remains in the
   State,   and the purchaser    has only the right     to acquire
   it by complying with the conditions       prescribed    by
   statute.    Williams   v. Finley   99 Tex. 468, 90 s.w.1087
   (1906);   State vi Elza,   109 Tgx. 256, 206 S.W. 342'(1918);
   Perez v. Canales,    69 Tex. 674, 7 S.W. 507 (1888).

              .~~Where execution       has been had for delinquent
   taxes on land held under such a purchase             contract,    the
   effect   of a valid     tax sale and deed is to divest         the
__ tax debtor     of all right,      title,. and interest    in and to
   the land described        therein    and to vest such right,
   tit1t3, and interest       in the grantee    of the tax deed.
   The only right which could be acquired            under the tax
   deed is the right       of the purchaser     from the State to
   acquire    the land from the State by complying with the
   conditions     prescribed     by statute.

                Article    5326,   V.C.S.,    provides    in part   as
   follows:

                 "If any portion      of the interest        on
          any sale should not be paid when due, the
          land shall    be subject      to forfeiture      by the
          Commissioner     entering    on the wrapper con-
          taining    the papers     'Land Forfeited,'        or words
          of similar    import,    with the date of such ac-
          tion and sign it officially,and             thereupon
          the land and all payments shall be forfeited
          to the State,     and the lands may be offered
          for sale on a subsequent          sale date.      In any
          case where lands have heretofore             been for-
          feited    or may hereafter      be forfeited       to the
          State for non-payment        of interest,       the pur-
          chasers,    or their    vendees,     heirs    or legal
          representatives,      may have their        claims re-
          instated    on their written       requestby       paying
          into the Treasury       the full     amount of inter-
          est due on such claim up to'the             date of re-
          instatement , provided        that no rights       of
Hon.   Bsscom Giles,    Page 4 - V-1441




       third persons may have intervened.         The
       right   to re-instate    shall be limited    to
       the last purchaser     from the State or his
       vendees or their heirs       or legal repre-
       sentatives.     . . .'

              We have found no Texas cases defining              the
limitations       of the last-quoted       sentence.     However,
It is well settled         that statutes     providing     for for-
feiture     of rights    under School Land Purchase Con-
tracts    must be strictly       construed,     while those'
statutes     relieving     from forfeiture      of such rights
must be liberallv        construed    In favor of the owner
at the time of forfeiture.            Lovett    v. Simmons,
29 S.W.2d 1021         Tex. Comm. App.1930);         Cruzan v. Walker,
119 Tex. 189,       2 L S.W.2d 908(1930);       Mound Oil Co. v.
Terrell,     99 Tex. 625, 92 S.W.         451 (1906).

              In Brooke v. Eastman, 17 S.D.339,            96 N.W.
699   (1903),the     Supreme Court of South Dakota had be-
fore   it a statute     providing     for the purchase       of public
lands of South Dakota.          After setting     forth    the con-
ditions    to be met ky the purchaser         of such lands,      the
statute    provides:              in that event only, will        the
said ourchaser,~his'heirs.           assigns.  or other legal
representatives,       be entitled      to a patent for the land
herein described.        . 0 ."     (Emphasis added;)       It was
held that the interest         of such a purchaser        was subject
to execution     and sale for delinquent         taxes and that if
the execution      and all other proceedings          therein   were
regular,     the interest    of the purchaser       from the State
passed to the purchaser         under the tax sale,        and the tax
sale vendee could compel the State to issue a patent
to the lands so sold to him upon payment of the bal-
ance of the purchase        price.

             In view of the foregoing,    and based upon the
assumption    that the tax judgment and deed were valid
in every respect,     it is our opinion   that a claimant    un-
der such a valid     tax judgment and deed executed     before
forfeiture    of the purchase   contract  is within  the class
of persons    having a right  of reinstatement    under
Article    5326, V.C.S.
    Hon. Bascom Giles     - Page 5 - V-1441



                            SUMMARY


                  A claimant   under a valid    tax
            judgment and deed executed       before
            forfeiture    of the purchase    contract
            has the right     of reinstatement    of a
            ;~;k;;ited   School Land Purchase Con-
                     .

APPROVED:                         Yours    very     truly

Jesse P. Luton,    Jr.             PRICE DANIEL
Land Division                     Attorney General

Mary K. Wall
Reviewing Assistant
                                  9y $fJtdaAxI+
Charles D. Mathews                        William     H. Holloway
First  Assistant                                        Assistant
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