Page:Federal Reporter, 1st Series, Volume 10.djvu/338

326 FBDEBAL EEPOBTKB. �fact is that these two last-mentioned cases furnish neariy the entire law of this case. At the same time I deem it proper to say that nearly every proposition involved herein, I believe, from the examina- tion I have been able to make, and from the authorities citadin argu- ment by the distinguished counsel on both sides who have aided in this case, can be and is fully sustained by Texas authority, as de- clared by the supreme court of the state. �Now, applying the law as I understand it to the facts of this case, I think it clearly follows that complainant is entitled to a decree in his favor embodying such relief as he has asked and the court bas jurisdietion to give. He asks for an injunction restraining the de- fendant, as oommissioner of the general land-office of the state, his servants, agents, employes, etc., from issuing, passing, or granting any certifieates or patents for lands lying within the limits of the Mercer col- ony to any person or persons other than the complainant or the Texas Association, and persons holding and claiming under or in priority with the said association ; and restraining the defendant, etc., from hin- dering and obstructing complainant in the execution and performance of the Mercer contraot, and in obtaining the certifieates and patents of lands to which the complainant and the said association are enti- tled under the terms and conditions of said contract. The relief is within the jurisdietion of the court, and is after the manner of the proceedings in equity. The complainant asks further for a manda- tory injunction to restrain the defendant from refusing to issue to com- plainant patents and certifieates for 1,376 sections of land to which complainant is entitled under the contract, by reason of settlers in- troduced thereunder, and to 1,376 sections of land to which he is also entitled under said contract by tendering in payment thereof $12 in coin and scrip to the amount of $640, or its equivalent in money, for each section, and restraining said defendant from hindering him from locating the said certifieates and patents upon any of the vacant and unocoupied lands of T«xus within or without the limits of the Mercer colony, etc. This relief, no matter how just, I conceive to be beyond the jurisdietion of the court in this case for want of proper parties. �The whole theory of this case is that the contract with Mercer cre- ated an express trust, which, by operation of law and compact, devolved upon the state of Texas; that the state of Texas is now the trustee, the Texas Association the cestui que trust; that the legal title is in the state, the equitable title in the association. It has been veliemently alleged by complainant and adjudged by this court that ��� �