Page:Federal Reporter, 1st Series, Volume 10.djvu/327

PEESTON V. WALSH. 315 �saine manner ai3 a plaintiff who collects a judgment which is after- ■wards reversed ; and as the proceeds of the sale of the grantor railroad were to be divided among its bondholders and stockholders in a certain manner agreed upon between the parties, they might also be requiied to refund. So in this case, as bas already been stated, if this sale is set aside, Harvey, the trustee, jnay be required to refund the proceeds of the sale. I cannot dispose of this case as though the trustee were not a party to the litigation. He is a party ; has answered the bill, defending the sale which he has made, and alleging that it was valid, and that there was a due execution of the power. The only ground upon -which the bill of the plaintiff proceeds is that because the sale was invalid he has a right to redeem from the deed of trust. The two things are dependent on each other, and necessarily conneoted together. Blake v, McKim, 103 U. S. 336. So that the jurisdiction of this court not being clear upon the facts as presented, it wili be remanded to the state court. ���Peeston V. Wa^sh, Com'r, etc.* �{Circuit Court, W. D. Texas. January, 1882.^ �1. CONTRACT OF THE REPUBI-IO OF TeXAS— ThUST. �The contract made by the republic of Texas, acting by Samuel Houston, president, on the eighth of January, 1844, with Charles Fenton Meroer, was yalid and binding on the republic. That contract created an express trust in favor of Mercer and his associates, of all the unlocated lands then lying within the limits flxed by the contract, to secure the performance of the contract. a. AlNkexation of Texas. �By the compact of annexation the state of Texas assumed all the obligations, liabilities, and duties, including those resulting from the express trust, there- tofore bearing on the republic of Texas, in relation to said contract with Mercer. �3. Contract— Trust. �Under the constitution of the United States, and the resolutions and compact of annexation, the state of Texas has been and is without, power, by any law, to impair the obligation of the said contract, or tho trust resulting therefrom. �4. Statuts of Limitations — Trustee. �Neither lapse of time, nor any defence analogous to the statiite of limita- tions, can be sel up by the trustee of an express trust as a defence lo his ability to execute the trust. �Hancock v. Wal»h, 3 Woods, 351, followed. �•Reponed by Joseph P. liornor, Bsq., of the New Orlfjaas bar. ��� �