Page:Federal Reporter, 1st Series, Volume 10.djvu/330

318 FEDERAL EBPOBTEB. �That the contract between the republic and Mercer created an express trust as to all the lands embraced in the lindts assigned to the Mercer colony, which trust bas never been satisfied, reversed, abandoned, nor forfeited. �That by the stipulation atteuding upon the annexation of Texas to the Union an express trust was created upon all the vacant and unappropriated lands retained by Texas to secure the payment of all the debts and liabilities of the republic. �That the rights acquired by Mercer and his associates constituted one of the liabilities recorded by this express trust resulting from annexation, and that the said liability has never been satisfied, extinguished, nor forfeited. �That there was never any intention of the deputies of thepeople, in conven- tion assembled, to declare any forfeiture of colony contracts, or to establish by any constitutional enactinent how and virhy any forfeiture should be declared ; and that no method has ever been declared by law for the forfeiture of such grants and the disposition qf the lands. �That, notwithstanding the grant to Mercer and his associates, the defendant and his predeeessors in office, without warrant of law, have assumed and pre- tended to make and issue and deliver eertiflcates and patenta for lands within the limits of the Mercer grant to numerous persons uot claiming through or under privity of Mercer or the Texas Association, which persons have paid money and made improveinents in ignorance of their infringement on the rights of the Texas Association, and that this has been done to such an extent that the remaining lands within the limits of the Mercer grant are inadequate to satisfy the just demanda and rights of the complainant. �That complainant is unwilling to interfere with the persons so acquiring rights, as they have expended money and labor in apparent good faith, and an interference would resuit in great hardship, �That the defendant is violating the prelirainary injunction issued in this case, and, confederating with 0. M. Boberts, governor of Texas, is issuing eer- tiflcates and patents for lands in contempt of this court, and to the great in- jury of complainant. �That defendant, confederating with said Boberts, has procured the passage of an obstruction act by the legislature of the state, which aet makes it the duty of the governor to countersign all eertiflcates and patents of public lands. �That the lands within the limits of the Mercer colony, by reason of their location and fertility, are more valuable than the other vacant lands in the state, and that if orator is driven to the other lands to satisfy his claim quantity should compensate for quality. �That under the constitution and laws of Texas, as they existed when Mer- eer's rights attached, and when this suit was instituted, the records and sur- veys and plats and maps relating to the public lands were to be kept in a general office, to be under the charge of a general land commissioner, who, upon proper showing, should issue patents for lands under the seal of the ^fcate. And that defendant is such commissioner in charge of such office, and that he and his predeeessors, though duly demanded, have refused to issue to orator and the Texas Association such eertiflcates and patents as the records of the ��� �