For the foregoing reasons, I am, therefore, of the opinion that your board has the power to declare a forfeiture of the lease in question and cancel the same. I am, POWER OF BOARD IN MATTER OF CONFLICT- A lease for State lands can not be made during the continuance of a prior lease, notwithstanding any action of the register of the Land Board in attempting to do so, but where there are conflicting rights under the two leases, the parties should be required to settle the matters in the courts. Denver, Colo., March 13, 1903. STATE BOARD OF LAND COMMISSIONERS, Of the State of Colorado. Gentlemen-I have examined the respective rights of J. F. Miller and W. W. and M. B. Porter, to the leases covering the 640 acres in section 16, township 9, range 64 west, in Elbert county, Colorado, the same being school lands. The State Board of Land Commissioners possesses special powers and has a limited jurisdiction, but has no power to transact business except under the mode provided by the statutes. An examination of the papers and records in this case discloses a most flagrant and outrageous disregard of this principle of law, which has no exception. The Porter lease was executed to Mr. Lowrey on the 19th of May, 1896, and came into Mr. Porter's possession through successive assignments. All persons dealing with the board are charged with the knowledge of the statutes of this State relating to the powers of the land board, and with the knowledge of the fact that the board can not deviate from the mode of action prescribed by law. Any attempt on the part of the board to deviate renders its action ultra vires, and absolutely void. Moreover, parties " dealing with the board are charged with such information as the records of the office contain. The Miller lease is dated September 15, 1900, and the record shows the first payment, October 18, 1900. The Porter lease shows the last payment December 14, 1900, signed J. N. Chipley. This lease expired, by its terms, May 19, 1901, and it will be observed that the Miller lease was executed previous to its expiration. Section 12 of Land Laws, provides: "That the lessee shall pay the annual rental to the State Land Board, who shall receipt for the same on the lease." Section 13 provides: "A lease to State land shall be conditional upon the payment of rent annually in advance, and the violation of this condition shall work a forfeiture of the lease, at the option of the State Board of Land Commissioners, after thirty days' notice, to be sent to the postoffice of the lessee, as given by himself to the Register of State Lands, when the lease is issued." Section 14: "When any lease expires by limitation the holder thereof may renew the same in manner as follows: At any time within thirty days next preceding the expiration of the lease, the lessee, or his assign, shall notify the Register of his desire to renew such lease; if the lessee and the State Board agree as to the valuation of the land, a new lease may be issued bearing even date with the expiration of the old one." Section 15: "Should anyone apply to lease any of the lands belonging to the State upon which there are improvements belonging to another party, before a lease shall issue, he shall file in the office of the State Board of Land Commissioners a receipt showing that the price of said improvements, as agreed upon by the parties, or fixed by the State Board, has been paid to the owner thereof in full, or shall make such proof that he has tendered to said owner the price of said improvements so agreed upon, or fixed by said board." It is a settled principle of law that when anything is required to be done as a condition precedent to the making of a contract, this condition must be fulfilled before the contract can be made. This requirement is contained in section 15, and is binding on both the board and the lessee, and Mr. Miller could gain no right to his lease without complying with it. For this violation of duty by Mr. Chipley, he is not responsi ble, because Mr. Miller is charged with the knowledge of it, and, in my judgment, he has not even the right of action against Mr. Chipley for damages, for the reason that a court will tell him that it was his duty to know that Mr. Chipley was not acting within his authority. Nothing appears on record or on file in the land office to show or indicate that any action was taken under the requirements of the statutes to cancel the Lowrey lease. Mr. Miller wrote a letter dated August 27, 1900, and the same month he filed his application for a lease on the same land. In it he acknowledges notice of the Porters' interest in the land. There is nothing of record or on file in the land office which shows an attempt to determine the compensation due the Porters for their improvements, in conformity with the statutes cited, and these things were necessary to be done before Miller could acquire any rights. The board was without power to make a new lease until it acted in conformity with the statutes, but I do not find that the board acted in this matter. I find that it was the Register who proceeded, and I find that his proceedings have been illegal from start to finish, and did not bind the board. Mr. Miller could acquire no rights unless he proceeded in accordance with the statutes. There is no way of reconciling the payments made by Miller in October, 1900, and the receipts of rents by Mr. Chipley, under the Lowrey lease, December 14, 1900. It can be explained by recalling that Miller paid Mr. Chipley, in a personal letter, while the Porters paid the deputy in the usual way. So far as the board is concerned, it did not cancel the Lowrey lease. There was no declaration of forfeiture or cancellation of the lease, or any effort made to terminate it by the board. Its records are silent on the subject. I find that since 1900 the Porters have ceased to pay rent, and that Miller has been in possession of the land and has continued his payments under a void lease. In conclusion, I hold that the Porters have the privilege to protect their rights under the lease given them, and that Mr. Miller's lease is void. I hold that the Land Board has nothing to do with this case, and that these parties are remitted to their rights in the courts. If the Porters' lease is good and the improvements belong to them, and the Miller lease is void, the only way for the Porters to get possession is to go into court and begin some suitable action for possession of the land and their improvements. It has been a ruling of the Attorney General's office for many years that it will not prosecute or defend the rights of parties under a lease or deed given them by the board, but will leave the respective parties to prosecute their own actions as they see fit. There is no use in canceling the Miller lease, as it is plainly a void lease, and, if Miller or his assignee refuses to give possession, the only recourse the Porters have is to go to law. If there are questions of estoppel on account of the conduct of the Porters or Miller, these may also be tried out in that action. The only controversy I see over the facts is that one party, under a void lease, is in possession, while the lessees, under the Lowrey lease, are out of possession. The court is the only tribunal that can restore them to their rights. It will serve no purpose for us to cancel the lease, for if we acted wrongly in so doing, the cancellation would amount to nothing, and in no event would it place the Porters in possession. The court alone can do this. All this board can do is to decline to recognize the Miller lease. I, therefore, recommend that this board decide that, in the controversy between the board and J. P. Miller, that the parties be notified that this board refuses to recognize the Miller lease, and that Mr. Porter be notified to take such action at law as he may be advised to place himself in possession of the property and improvements, within sixty days, else the board will take such action in relation to the land as it may be advised. It will be observed that the Porter lease expired May 19, 1901, and that the statutes required him to give notice within thirty days before its expiration if he desired to renew it. regard to this I will say: In 1. That it was impossible for them to secure the renewal of it, Miller being in possession of, and holding, a lease which the Register treated as good, and they have always insisted on their rights. 2. The Miller lease could not ripen into a valid lease when it was void in its inception. 3. The court will determine whether the Porters have done all that was required to secure to them the first right to a renewal of the lease. We have spent much labor and time in endeavoring to get at the bottom of this matter, and we hope that this will finally settle the matter until some decision of the court is made in the premises. Respecfully, N. C. MILLER, Attorney General. By H. J. HERSEY, Assistant Attorney General. STATE BOARD OF LAND COMMISSIONERS. Mode of preparing patent. Requirement as to signature and seal. Denver, Colo., September 30, 1904. THE STATE BOARD OF LAND COMMISSIONERS, State Capitol, Denver, Colorado. Gentlemen-I have your request for my opinion, which is as follows: "Herewith is handed you Patent No. 1188, issued to Lewis C. Olmstead the 15th day of November, 1893, which is claimed to be invalid, lacking the seal and official signature of this department. "Will you kindly advise me if such is the case and what steps are necessary to be taken to correct the same?" In reply, I will say that the 8th General Assembly, in 1891, passed two acts relating to the manner of execution of patents for public lands. The first of these was approved April 1st, 1891, and is found in Session Laws 1891, at pages 256-257. This act provides that: "Whenever a purchaser of any State land has complied with all the conditions of the sale, and paid all the purchase money with lawful interest thereon, he shall receive a patent for the land purchased; such patent shall be signed by the Governor and countersigned by the Register, and attested with the seal of the State Board of Land Commissioners; and when so signed, such patent shall convey a good and sufficient title in fee simple." The second of these acts was approved April 11, 1891, and is found in Session Laws, at page 274. Section 2 of this act provides that "The Governor of the State shall be, and is hereby authorized, and in case of his absence or inability, the Lieutenant Gov ernor shall be, and is hereby authorized, to execute a good and sufficient deed of conveyance, transferring in fee, without cove nants, any or all lands which shall or may be ordered sold, or which shall be sold or disposed of by the State Land Board under the statutes of this State. Such deed shall be attested by the Secretary of State and have the great seal of the State thereto attached, but need not be acknowledged. The certified copy of the record of any such deed shall be receivable in evidence in all courts of record in this State, the same as the original." |