            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
