property. There is, substantially, no dispute as to the facts, and the; question is not one of irregular t>r excessive assessment, (for relief against which, if such ground existed, this court would probably not be the proper tribunal,) but it is whether on the said 1st day of January, 1886 and 1887 ,the complainant had any taxable property in said landsj and it would seem that under the constitution of this state that question resolves itself into the question whether on the dates named the complainant had any property in said lands. But waiving this broader view of the question, which has been presented, and ably argued, and well supported by authority, in the printed brief submitted by the attorney general and the assistant attorney general of the state on behalf of the defendant, I will notice briefly the positions taken in the bill and earnestly pressed in the brief of complainant's solicitors. As stated in the brief these are: First. The complainant did not on January I, 1886, or January 1, 1887, hold the unearned lands in Oldham county under a contract of purchase, within the meaning of article 4691, Rev. St. Tex. "Second. The complainant did not at either of said dates hold said lands, within the meaning of article 4691, under s. lease for a term of three years or more." The state of Texas owns a great many sections of land, separated from the public domain and set apart for a permanent public school fund, and for other public charities. There have been, and are still, laws providing for the sale of these lands on long time, and for leasing such as are not sold for longer or shorter terms on conditions as to reserved rent and other particulars mentioned in the statutes. The section of the state constitutionappropriating 3,000,000 acres of the public domain for the purpose of erecting a new state capitol, provided that said lands should be sold under the direction of the legislature, and that the legislature shall pass "suitable laws to carry this section into effect." The sixteenth legislature did pass laws for carrying this provision into effect, under which the lands were surveyed into leagues, (wherever practicable,) which were numbered and platted, and carefully described by fixed corners, metes and bounds, character of soil and water, and other features affecting value. These the capitol commissioners, under direction and with approval of the capitol board, were authorized to sell for money, or to contract to an accepted bidder for the erection of the capitol building, (as was donej) but no mention is made of any authority to lease all or any portion of the capitol lands in any act of the legislature that I have beenllble to find. There appears to have been authority hl the counties to lease certain lands belonging to said counties for school purposes. And on the 12th April, 1883, (page 89, Sess. Acts,) provision was made for leasing certain of the lands set "apart for the benefit of the common school, university, the lunatic, blind, deaf and dumh, and orphan asylum fundsj" and amended provisionE\ have since been made in reference to these lands, all requiring some rental (and generally fixing a minimum) to be reserved. The complainant insists that he did not hold these lands under a lease for a term of three years or more, for that before the expiration of three from the 25th day of July, 1885, he had earned said lands under his contract, and had received patents for
TAYLOR ". ROBINSON.
them. But if this fact shows that he did not hold said lands under a lease for a term of three years or more, does it not as clearly show that, as to these lands at least, there never was any lease at all, for that rent was only reserved on such lands as the contractor should not earn under his contract? Waiving, therefore, all question as to the authority of the capitol commissioners and capitol board to lease the capitol lands, (a question the defendant has not raised,) I am of opinion that the position is well taken by the complainant that he did not on the 1st day of January, 1886, or the 1st of January, 1887, hold these lands under a lease for a term of three years or more. He, however, did have actual possession of them, or a clear and undisputed right to the possession of them as against the state, on said dates, under a contract of some kind. Complainant insists that it was not under a contract of purchase, because the first contract did not expressly recognize his right to the possession of said lands, and the supplemental contract, which does so recognize his right, and under which he says he entered, uses the word "lease" in connection with his right to possess said lands, and his liability to pay rent for such as may not be earned under his contract; and because the acts of the legislature authorizing his contract do not anywhere in express terl11S refer to the capitol contractor as a purchaser of the lands. And by way of illustration and further argument suggests that if the contract to build the capitol had provided for payment in money, the contractor would not be considered as a purchaser of the money; that purchase embraces all manner of acquisition except inheritance, and in this sense a lessee is a purchaser, but that the term "purchase" is not used in this broad sense in article 4691, Rev. 81. Tex. It is apparent that by"purchase" in said section is meant a contract to acquire the fee in the land. That, however, is the estate in the land for which the complainant did contract as to all the lands earned by him under his contract to erect the state capitol building. It can hardly be seriously urged that because the word "purchaser" or "purchase" is not used in the statutes or the contracts as descriptive of the contractor, said contractor, who binds himself in wri 1ing, mutually executed and delivered by him and the proper state authorities, to erect a specified building for certain clearly designated parcels of land, is therefore to be held as not acquiring or holding said lands after entry permitted and before patent under a contract for the purchase of said lands. I have already shown why, in my opinion, the term "lease" mentioned in the supplemental contract must be restricted to such lands, if there should be any such, as are never earned under said contract. it is misleading to say that, if payment in money had been contracted for, the contract could or would not have been construed as one for the purchase of the money The term "money" is used to designate the whole volume of the medium of exchange recognized by the custom of merchants and the laws of the country, just as the term "land" designates all real estate.' If the contract in this caae had been to erect the capitol building for land to the extent in value of $1,500,000, or to the extent in acres of 3,000,000, to be taken as it might be thereafter tendered out of the public domain, the analogy to a contract for pay in money would be
closer. If 1becontract had been for payment in certain pieces of a definite kind ormoney, each piece marked and held at first by the state,but to be delivered in a certain order,-:-that is, commencing with a ,certain number, and: continuing with the consecutive numbers, in installments as the work progressed,-and afterwards. when the work had considerably progressed, on;the givinl/; of slJ,tisfactory security, possession, of all the marked money was delivered to the contractor, providabsolutely, ing that as be earned it in installments terminated and, that, ifhis,contract should be abandoned or before he earned· it all, then he was to pay interest at the rate of 6 per cent. per aI),num for all the said moneys which may not then have been eamedby him, the analogy it seems to me would be perfect. Then, whether it ever became· a loan (lease .or renting) would depend upon whether the contract was terminated before completion, .because, if not. the whole would have been'earned, and no interest whatever be due for said moneys, but the same would'.thenbe "the property of Taylor or his assigns; free from any olaimon the part of the state for rent, (interest,) as though this agreement (about the possession of the moneys) had not been.made." It appears to ,me that the lands in question were held by complainant in 1886 and 1887 under a contract for the purchase thereof, and were and are SUbject to assessment for taxes for those years, and· that the motion for' a preliminary injunction should be re-; fused. And'it is so ordered·.
ORVlSS ."'. DUNN.
(Girc'Ilit GOU'l't, No D. TezalJ.
TRUSTS-ACTION TO ESTABLISH-LoST INSTRUMENTS-SUFFICIENCY OF EVIDENCE;
In a suit brought in 1884 to establish and enforce a bond to reconvey, al-leged to have been given in 1847 by: defendant to his uncle J., under w)J.om, plaintiff claimed, one witness testified that he saw certain papers executed about that time. and understood them to be deeds of J.'s land to defendant, given to enable defendantto sell it in the States whither he was returninA' after a visit to J., and a bond to reconvey in case defendant failed to sell. Another testified from talks with defendant at that time he understood that such an arrangement had been made, and that he afterwards saw such a oond to reconvey produced and proved in a suit in 1854; that the witnesses to the bond were dead. It appeared that in 1847 defendant was poor, and the consideration he alleged was very small-less than one-ninth of that expressed in the deed. Plaintiff and his grantor had been in continuous possession and paid taxes since 1800.. Held, that plaintiff was entitled to relief.
In Equity. Bill to establish a hond Cor title, and for specific performance, by David A. Orviss against John Dunn. R.G. Street and A. C. Prendergast, for complainant. Clark, Dyer Jc Bolinger, for defendant.
MCCoRMICK, J. On the 30th day of January, 1884, the defendant in this suit,a citizen of the state of Mississippi, brought his action of trespass to try title (ejectment) against complainant to recover possession of, and establish his title to, a certain half league of land in Robertson, county, Tex., described in his petition therein, and in the bill herein., On the 6th day of December, 1884, the complainant filed his bill herein, setting up substantially that on and prior to the 1st day 1847, the land in controversy was owned by one James Dunn, an uncle of the John Dunn party hereto, and that on said 1st day of FebrUluy,; 1847, said James Dunn had conveyed said land to said, John Dunn by , absolute upon its face, reciting a cash consil1eration of $3,000 in haud paid, and acknowledged to have been received from said .John Dunn by said James Dunn; that in truth and fact no consideration, was paid or contemplated to be paid; tha,tthe purpose ofsaid deed was to put the legal title to said land in said John Dunn, to enable him with facility to sell the same for his uncle in Mississippi, or one of the older statl;ls; and that simultaneously with the execution and delivery of deed there was.executed by John Dunn and delivered to said Dunn an obligation to· reconvey, unless. sale was effected;. that, pursuant to .this. purpose, the deed to John Dunn was recorded, and the bond or obligation to reconvey was withheld from record; that, no sale being effected by John Dunn, the said James Dunn, on the 9th day of Septem,ber, 1850, conveyed this land, lin distribution of his estate) to his son,James Dunn, Jr.; that said bOlld for title has beelliost Of. mislaid, and canpqt. now be found; that complainant holds the title of the said JaIlles Dlll]lU" . Jr·· and that he and . those un<ierwhom he claims have