Page:Federal Reporter, 1st Series, Volume 10.djvu/336

324 FEDERAL REPORTER. �was to run. And further, that no default or determination wa3 to operate otherwise than prospectively. The defendant fails to show the truth of his charge in regard to the survey of 1845 and the man- ufacture of the map of that date. �The remaining allegations of defendant's answer — leaving eut argu- ments and conclusions of law therein contained — may be considered as substantiated. The proceedings in the Navarro county court are proved, with the variance that the suit was brought in the name of A. C. Horton, acting governor, for the benefit of the people of Texas, instead of, as alleged, in the name of A. 0. Horton, governor, for and on behalf of the state of Texas, and that there is no proof of service by publication or otherwise on the defendant. It is true that the record produced shows that service by publication was ordered by the court and by the sheriff, but it does not show how, where, or when publication was made, or that it was made at all. The recital in the alleged judgment of the words, "and it appearing to the court that service had been pei-fected," cannot cure the defect. As I understand the law, the record must show affirmatively that the forms of service provided by law have been complied with, before the judgment of a court, otherwise having jurisdiction, can have the force of the thing adjudged. �Certainly the insertion in the judgment of a few words cannot have the talismanic effect of supplying the want of service. I am not at all certain but that the many other glaring defects on the face of the record, so far as proved, or so ably argued by counsel, strike the entire proceedings in Navarro county with absolute nullity. The defects are most certainly very serious relative nullities. �Now, taking the facts as I have found them to be disclosed by the evidence, I am satisfied that the following propositions of law, as applicable in this case, are clearly maintainable : �(1) The contract made by the republic of Texas, aeting by Samuel Houston, president, on the eighth day of January, 1844, with Charles Fenton Mercer, was valid and binding on the republle. �(2) That contract created an express trust in favor of Mercer and his asso- ciates of all the unlocated lands then lying within the limits fixed by the con- tract to secure the performance of the contract. �(.3) That by the compact of annexation the state of Texas assumed all the obligations, liabilities, and duties, inoluding those resulting from the express trust theretofore beariug on the republic of Texas in relation to said contract with Mercer. �(4) That under the constitution of the United States, and the resolutions ��� �