Mrs. Viola Pitts et al. v. Camp County et al., 120 Tex. 558

Mr. Presiding Commissioner SHORT delivered the opinion of the court. The following statement and questions comprise the certificate from the Court of Civil Appeals of the Sixth District: “W. H. Pitts signed, acknowledged and delivered the following deeds: “ ‘THE STATE OF TEXAS ) ) Know all men by these presents: CAMP COUNTY. ) “ ‘That I, William H. Pitts of the County and State aforesaid, for and in consideration of the sum of Ten Dollars to me in hand paid by W. R.

Barnes, presiding justice of the county court of said County, the receipt whereof is hereby acknowledged, before the signing and delivery of these presents, and for the further consideration that the County Seat of said county was located in the town of Pittsburg at an election held on the 20th day of June A. D. 1874, have granted, bargained, sold and conveyed, and do by these presents grant, bargain, sell and convey unto the said W. R.

Barnes, presiding Justice as aforesaid, and his successors in office the following described lots or parcels of land lying, situate and being in the town of Pittsburg, in said County, to-wit: Lots Nos. 6, 7, 8, 9 and 10, each 40 feet wide and 110 feet long, bounded on the north by Church Alley, on the south by Jefferson Street, east by lot No. 11, and west by lot No. 5, as a place for erecting the courthouse, and any other public buildings which may be necessary for said County of Camp. “ ‘To have and to hold the above described lots together with all and singular the rights and hereditaments and appurtenances to the same in any manner appertaining unto the said W.

R. Barnes, presiding justice as aforesaid, and his successors in office, for the use aforesaid forever. “ ‘And I do hereby bind myself, my heirs, executors, and administrators and assigns forever to warrant and forever defend the right and title in and to the above described premises to the said W. R.

Barnes, presiding justice as aforesaid, and his successors in office against all person whomsoever lawfully claiming or to claim the same or any part thereof. “ ‘Nevertheless, the condition of this conveyance is such that if the county seat should be hereafter removed to any place in the said county, then, and in that case, this obligation shall be null and void, and the property herein conveyed shall revert to the said W. H. Pitts, his heirs or assigns. “ ‘In testimony whereof I hereunto set my hand and affix my seal, using a scroll for seal. This 1st day of August, A. D. 1874. (Signed) Wm. H.

Pitts.’ “The deed was duly filed for record September 28, 1874. II. "The appellants, who are the heirs of W. H. Pitts, deceased, instituted this suit against Camp County and the City of Pittsburg for the recovery of Lots 6, 7, 8, 9 and 10, which are the lots designated in the above deed. The suit was in the form of trespass to try title and to remove cloud from title. Besides other allegations in the petition, the above mentioned deed was set out and the following averment was made: “ ‘Petitioners show that by said instruments the said W. H.

Pitts dedicated and intended to dedicate said land to the use of the County of Camp, for the sole, specific use and benefit of said Camp County for the erection of a courthouse, and other public County buildings and for no other purpose and intended, as therein expressed, that in the event said County site should be removed to. any other place in said County than said property, that the right to use and occupy said property should cease forever and said property should revert to said W. H. Pitts or his heirs.

That said grant did not pass, was not intended to pass the fee in said land, but only the use for the specific use as a site for the courthouse and other County buildings for said County, and that the effect of said instrument was intended to and was and is, that for the specific use aforesaid alone the County of Camp by and through its proper officers could and did accept the said grant of the said property to be used for a courthouse site, and for the necessary County public buildings, and did erect a Courthouse thereon soon after obtaining said contract of dedication, and for the building for the County Officers, and continued to so use said land and premises until about the first day of February, 1929, when, having obtained other lots and parcels of land therefor, and desiring and intending (to) abandon the site, place and property, it erected and built a new Courthouse with all the offices for all the County Officers of said County;, the said County having removed the seat and site and location of the Courthouse from the said described land, the said County after so building said new Courthouse on another and different tract and parcel of land at another and a different place, discontinued the use of said granted and dedicated tract of land above described, for the purposes for which it was dedicated and accepted, and abandoned the same as to such purposes, and removed all the County Officers, and all County Furniture to the new site, on a different tract and into a new Courthouse thus differently situated.’ “The appellees pleaded, besides other matters, that: “ ‘These defendants further allege that at the time of the holding of said election for the location of the county seat for Camp County, Texas, and at the. time of the execution of the foregoing mentioned deed and conveyance to the said W.

R. Barnes, the said W. H. Pitts was the owner of practically all of the land on which the City of Pittsburg was then located and on which it is now located; that it was the purpose and intention of the said W. H.

Pitts and the principal moving consideration actuating him in making the said conveyance to locate the county seat of Camp County at Pittsburg and thereby enhance the value of his lands and to make Pittsburg in Camp County the principal town of Camp County for the purpose of profit to himself by making his lands more valuable and creating a demand and market therefor and to maintain and retain the county seat at Pittsburg until and so long as it was necessary to enable him to sell and dispose of his lands and properties in Pittsburg at an enhanced and increased value. “ ‘These defendants further allege that the condition of defeasance set out in the said conveyance has not been broken by the said Camp County nor by the said W.

R.

Barnes nor any of his successors in office, but that the County of Camp has built, with the aid and assistance of the city of Pittsburg, a municipal corporation, which furnished a part of the financial assistance for the erection thereof, a modern two-story brick building for the purpose of furnishing a ladies’ rest room for the citizenship of Camp County and a gents’ toilet and a grand jury room on the up-stairs floor, and has permitted the city of Pittsburg, in consideration of financial aid from the said city, to use and occupy a part of the said building as a fire station and public building necessary for Camp County and the citizenship of the said county in Pittsburg, and to occupy the same by the fire" chief and the fire engines of the said city. “ ‘These defendants further allege that the county seat has been maintained at Pittsburg in said county since 1874; that immediately after the deed of conveyance was so executed by W.

H.

Pitts, Camp County constructed a brick courthouse and jail thereon, at that time a modern courthouse and jail for a county of the size of Camp, and the said county used, occupied and maintained the said courthouse and jail on the property herein in controversy exclusively until the building of the present courthouse, as alleged by plaintiffs, for the full period of more than 54 years, and the said county has never at any time concluded to abandon the said property and has never at any time yielded its possession thereof, but has at all times claimed to own the property in fee simple and now claims the title to the said property in fee simple; that the condition of defeasance stated in said deed was placed there for the purpose of protecting the said W.

H. Pitts, in maintaining and causing the county to maintain and continue the county seat at Pittsburg for the enhancement of his property for the general upbuilding of the towns of Pittsburg and for the welfare in a financial way of himself and family, and that by reason thereof and the continued use of the said property for the great length of time and by reason of the disposition of the properties of the said W. H. Pitts and his heirs in the said county the necessity for the condition of defeasance has long past.

Pittsburg is now a town of about 1800 or 2,000 inhabitants, and is more than five times in size any other town or village in the county.’ “Camp County further asked for the removal of cloud from its title. III. “The case was tried before the court without a jury on April 4, 1929, and, upon the written request of the plaintiffs filed during the term, the court made the following findings of fact: “ ‘1. I find that from a time prior to 1872 up until his death about 1898, W. H.

Pitts was a citizen in Camp County, Texas, and in 1874 owned quite a large quantity of land in Pittsburg in Camp County, both in town lots and in country property, a part of which the town of Pitts-burg is located on and the balance adjacent thereto, and in addition to that he owned land in the country 2, 3 and 4 miles from Pittsburg. “ ‘2. I find that W. H. Pitts died about 1898 and left surviving him a son, Dr. T. N. Pitts, and a daughter, Mrs. Ella Plateau, and that Dr. T. N. Pitts died about 1907 and that Mrs. Viola Pitts is the surviving widow of Dr. T. N.

Pitts and the other plaintiffs are the heirs of the said Dr. T. N. Pitts other than Mrs. Ella Plateau. “ ‘3. I find that in April, 1874, Camp County was created by

an Act of the Legislature from a part of Upshur County, and the act provided for the holding of an election for county officers and for the location of a county seat for Camp County. “ ‘4.

I find that under the said act creating Camp County there was an election legally held on June 20, 1874, for the election of county and precinct officers and for the location of a county seat, and that at said election three places in Camp County were voted on, viz.: Pittsburg, Leesburg, a point about 6 miles west of Pittsburg, and Center Point, about three or four miles S.E. from Pittsburg, and that as a result of said election 500 votes were cast for Pittsburg as the county seat, 228 votes- were cast for Leesburg as the county seat, and 69 votes were cast for Center Point as the county seat of Camp County. “ ‘5.

I find that at the time of said election W. H.

Pitts and his family lived and resided in Pittsburg, and that he had 20 or more lots of land upon the street in Pittsburg on which the land in controversy herein is situated, being business lots that had been laid, off and a plat made thereof and the lots were 26 feet by 110 feet both on the north side and the south side of the main street, which is called Jefferson Street, running south and adjacent to the land in controversy for two blocks West, and from thence west it is called Quitman Street; that the plat of •said town at the time showed a street running east and West south from Jefferson Street called Marshall Street, and a street running E. and W. north of the land in controversy called Church Alley, and that Church Alley at its west extremity intersects the continuation of Jefferson Street, which bends about thirty degrees toward the north. “ ‘6.

I find that during the campaign immediately prior to the election W. H. Pitts made statements that if the county seat was located at Pittsburg he would deed to the county the property on which to locate the courthouse and other county buildings and that his desire was to have the county seat located at Pittsburg with the expectation and belief that his property would be enhanced in value and a better market would be created for his said property and that he would thereby receive a benefit and profit in the sale of his town and adjacent country property. “ ‘7.

I find that there is no record in the County Clerk or County Treasurer’s office showing the issuance of any wararnt for the sum of Ten Dollars payable to W. H. Pitts which is referred to in the conveyance above copied, and I do not find whether the Ten Dollars was actually paid to W. H. Pitts or not, but I do find that the principal actuating and moving consideration inducing the said W. H.

Pitts to make the said conveyance was the location of the county seat of Camp County at Pittsburg and the maintenance and retention of the county seat at Pittsburg for the purpose of enhancing the value of the property owned by the said W. H. Pitts in the town of Pittsburg and adjacent to the property conveyed in the foregoing deed. “ ‘8.

I find that the proper authorities of Camp County within a reasonable time after the execution and delivery of the foregoing conveyance erected a brick courthouse on the property so conveyed and also a brick jail house, and that the said courthouse and jail house were kept and all the county offices were kept on this property except a grand jury room and a petit jury room from the time of the erection thereof, about 1874 or 1875 until about 1917 or 1918, when the county, on account of the dilapidated condition of the old jail, built a new jail house on property owned by Camp County immediately north of the property in controversy and about 150 feet distant from the old courthouse, and that the old courthouse so built when the property was conveyed to the county has been continuously used by the county officers and all the county business, including the District Court has been conducted in the old courthouse until about February, 1929. “ ‘9.

I find that about 1926 the old courthouse was wholly inadequate for the accommodation of jurors and of the grand jury when district court was in session, and that there was no rest room or toilet in conection with the courthouse, and that Camp County and the City of Pittsburg, a municipal corporation, made an agreement whereby each would pay half the expenses of erecting a modern brick and concrete building two stories high and about 40 feet square; that the ground floor on the west end was used' for a ladies’ rest room and a gent’s toilet, and the east portion of the ground floor was to be used as a place to keep the fire trucks and apparatus by the city of Pittsburg with the consent of the Commissioners’ Court of Camp County.

The upper story was equipped so that the east end would be used for the fire chief, who was the person occupying and caring for the fire truck and engine, and that on the west side of said building was a grand jury room properly equipped for the sessions of the grand jury and a petit jury room properly equipped for petit jurors, and that the said building has been continuously used in connection with the old courthouse for county purposes and was a necessary public building for Camp County. “ ‘10.

I further find that the old brick courthouse on the property in litigation has become cracked and was a dangerous building and 'was wholly inadequate for county purposes, and that it has become necessary that a new courthouse be built for the use of the officers and for court purposes, and that Camp County owned a lot about three hundred feet east and west by 400 feet north and south on which the jail was already located, and that the county commissioners’ court, in the exercise of its authority, in the year 1928 began the erection of a modern new courthouse on the said lot about 200 feet north from the old courthouse; that there is a street about 30 feet wide running east and west between the lots in controversy herein and the lot or block on which the new courthouse was erected. “‘11.

I find that the new courthouse is equipped with a basement story, a first floor and a second floor and a third floor; that the basement story accommodates the Justice of the Peace and one other office, and that the heating apparatus and fuel compartments are located therein. The first floor contains the County Judge’s room and the county court room, the county clerk’s office, the sheriff’s office, the County Treasurer’s office and County Superintendent’s office.

The second floor is occupied on the east side by the district court room, which is two stories high, occupying the space perpendicularly of the second and third floor, with a balcony at the south end and the Judge’s office in the northeast corner in the rear of the Judge’s stand, and a room for the jury to retire immediately north from the Judge’s stand, and on the west side is the district clerk’s office at the northwest corner, and one or two other office rooms and the County Attorney’s office. “ ‘On the west side of the third floor is a grand jury room fitted for the use of the grand jury and a petit jury dormitory, a place for sleeping quarters and resting and bathing for the petit jurors, and that on the northeast corner of the third floor is a petit jury deliberating room.

This new courthouse is equipped with running water and toilets for the accommodation of both white and colored people, and is steam heated. “ ‘12. I find that the grand jury, either of their own accord or at the request of properly constituted authorities, and whether of their own accord or at the request of others or not I do not find, at the present term of court occupied the grand jury room on the second floor of the new building on the lots in controversy. “ ‘13.

I find that the county seat of Camp County is still located at Pittsburg in Camp County, Texas, where it was located at the election held on June 20, 1874, and that there has never been any effort on the part of any citizen of Camp County to remove the county seat of Camp County to any other place in the county, and that the said lots in controversy had been used, occupied, controlled, and held by the county for more than 54 years. “ ‘14.

I further find that after the completion of the new courthouse in February, 1929, all of the officers of Camp County moved their offices, records and papers in their custody into the new courthouse, and they now are occupying their quarters in the new courthouse except the County Demonstration Agent, and I do not find where his quarters are. “ ‘15. I find that the location of the county seat in Pittsburg at the election held on June 20, 1874, did enhance the value of the property owned by W. H.

Pitts after deeding off to the county the property in controvers}' herein, and that at the time of his death he had sold and disposed of all of his business property in Pittsburg except about 6 or 7 lots, which are held by the heirs of his son, T. N. Pitts, in the third block west from the property in controversy, being about 600 feet from the old courthouse on the property in controversy, and I find that the only property held and owned by Mrs. Ella Flateau, the surviving daughter of W. H.

Pitts, in the county of Pittsburg is located a quarter of a mile or more south of west from the courthouse and is very little improved. I find that all of the heirs of W. H. Pitts and his son, T. N. Pitts, live away from Camp County except Mrs. Viola Pitts, the widow of T. N. Pitts, who lives in Pittsburg something near 600 yards west from the property in controversy and that she holds for life the business lots that were owned by her husband at his death in the third block west from the courthouse and they are small lots and designated on the map as half lots. “ ‘16.

I find that the retaining of the courthouse on the lots of land in controversy herein or a building of the new courthouse on the property north thereof about 200 feet does not in any way affect injuriously or diminish the value or the use of the property owned by the heirs of W. H. Pitt's in Pittsburg, and that they have no interest in maintaining the courthouse on the lots of land in controversy herein, and they are seeking to recover herein solely upon the ground of misuser and claiming a forfeiture under the conveyance hereinbefore set out. “ ‘17.

I find that none of the plaintiffs nor any one representing them have ever at any time objected to the building of the jail on the property where the new courthouse is now located, and that it has been on the said property for 12 or more years, and that none of the plaintiffs have ever objected to the erection, use and occupation of the new building on the property in controversy herein that is now being used by the county of Camp for a ladies’ rest room and toilet and by the city of Pittsburg as a fire station, but that the same was permitted to be erected at the expenditure of $14,000.00 and used continuously after its erection without complaint or objection from the plaintiffs, or any of them, or any representative of them. “ ‘18.

I find that in erecting the new courthouse it was the intention of the county to abandon the old courthouse and the property described .in the plaintiff’s petition for all courthouse and jail purposes, and it in fact has so abandoned the same for the aforesaid purposes. But the building thereon is being used as a public building by the citizens of Camp County as a public rest room and toilet, and is intended to be so used in the future. CONCLUSION'OF LAW “I conclude that the conveyance made by W. H. Pitts to W. R.

Barnes, Chief Justice of the County Court of Camp County must be given such construction as will give full force and effect to all the parts thereof. “I further conclude that the said conveyance must be strictly construed most favorably for the grantee and against the grantor. “I conclude that so construing the said conveyance the intention of the parties viewed from the circumstances surrounding them at the time, and particularly the intention of the grantor, was to convey the property in controversy in Camp County and to place a restrictive clause therein to prevent the county seat of Camp County being removed to some other place than Pittsburg in Camp County in order that he might reap the benefits of enhanced price and the building up of Pittsburg and the sale of his remaining property incident thereto, which was the real consideration for the conveyance. “I further conclude that by placing the restrictive clause in said conveyance providing that the condition of this conveyance is such that if the county seat should hereafter be removed to any place in said county, then and in that event this obligation shall become null and void and the property herein conveyed shall revert to the said W.

H.

Pitts, his heirs and assigns, was a restriction on the right of forfeiture in the grantor, and that no forfeiture can take place under any circumstances until this condition subsequent was broken. “Upon the foregoing facts and conclusions of law I am of opinion that the plaintiff should not recover and the defendants should recover of the plaintiffs all costs in this behalf incurred and expended, and that Camp County having pleaded the facts and prayed for the title and possession of said property and to have the claims of plaintiffs adjudged a cloud upon ' the county’s title and that it be removed, such relief should be granted and was by the judgment of the court granted. “Such I understand to be the holding in Stevens v.

G. H. & S. A. Ry. Co., 212 S. W., 639, and Garrett v. Olcott, 23 S. W., 985.” “The above findings have support in the evidence. IV. “The trial court entered judgment (1) denying the plaintiffs a recovery, and (2) decreeing that Camp County, on its cross-action, recover as against plaintiffs the title and possession of the lots in suit, as well as removing the cloud on title by reason of the claim of plaintiffs. V. “Question 1. Did Camp County, in the light of the surrounding circumstances and the purposes sought to be obtained by W. H. Pitts, acquire an indefeasible fee simple title to. the lots? “Question 2.

Is the deed above set out to be construed as one passing the fee simple title to the property, or as one establishing a dedication merely of the property for the particular uses of a courthouse and other public buildings ? If it is a deed as one establishing the dedication merely, then has Camp County relinquished its rights to the lots dedicated by permanent abandonment, as done, of its use for purposes of a site for the county courthouse ? “Question 3. Did the trial court err in holding, as he did, that the title to the property did not revert to the heirs of W. H.

Pitts, because in the circumstances shown there had been no violation of the reversionary clause of the deed stating, in effect, that should the county seat ever be removed from Pittsburg the property should revert to the grantor, his heirs or assigns ?” Since the parties in their respective briefs agree that the written instrument quoted in the certificate is not ambiguous, and since we have reached the same conclusion, much of the oral testimony introduced becomes immaterial.

The policy of the law is to render the alienation or transfer of land as free as it is possible to do, where the grantor possesses the legal qualifications to execute such transfer, in the absence of fraud, accident or mistake, and therefore conditions, rendering the transfer inoperative, are not favored by the law. The trial court found that the $10, named in the instrument as a part of the consideration, was not in fact paid, and so this part of the language, used in the instrument, must be ignored.

Where the consideration, moving a grantor to execute a written conveyance of property, is not contractual in its nature, it is permitted to prove the real consideration, the doing of which does not infringe upon the rule that the terms of a valid written instrument cannot be varied by oral testimony. This is especially true, where the oral testimony does not contradict the written instrument, but rather shows what the real consideration is. Lanier v. Faust, 81 Texas, 186, 16 S. W., 994; Taylor v. Merrill, 64 Texas, 494, and authorities there cited.

The language in the instrument “and for the further consideration that the county seat of said county was located in the town of Pittsburg at an election held on the 20th day of June, A. D. 1874”, may be explained by proof of facts elucidating the circumstances pertinent thereto, in existence at the time the instrument was executed. However, these circumstances must be proven, if at all, by competent testimony and in a way prescribed by legal rules for the introduction of evidence.

Testimony tending to establish a remote inference, where there is no logical connection between the principal fact sought to be proved and the deduction to be drawn therefrom, by reason of such testimony, is never admissible. The oral statement of William H.

Pitts, made on some unidentified occasion at some unidentified time, prior to the election on June 20, 1874, to the effect that he would give the land for the courthouse, if the citizens of Camp county would vote for Pittsburg as the county seat, was too remote and indefinite to thrown any light on the meaning of the language quoted, as used by the grantor in said instrument.

This is especially true, in the absence of testimony to the effect that this oral statement had been given general publicity and that it probably had influenced a sufficient number of the voters, who otherwise would not have voted in favor of Pittsburg, to do so. For the same reason testimony that Pitts had made certain conveyances of land located in the town of Pittsburg, and in its vicinity, prior to the election held on June 20, 1874, was inadmissible to furnish an explanation and meaning of the language quoted.

Certainly the testimony that Pitts had made certain conveyances of land, located in the town of Pittsburg, and in its vicinity after August 1, 1874, could not throw any light upon what he meant by this language used in this instrument dated on that day, in the absence of testimony tending to show he had in mind the intention to make these conveyances at the time he executed the instrument under discussion. The circumstances which might be proven must be pertinent to the language sought to be explained, and to the situation of Pitts at the time he used it.

What he may have said or done at some remote period, prior to August 1, 1874, or what he may have done at different times thereafter, which had no visible or open connection with what he did on August 1, 1874, even though sufficient to establish an inference, would be too remote, in aid of the effort to give meaning to the language quoted. Jones on Evidence, 3rd par. 137, p. 181; Wigmore on Evidence, vol. 1, p. 255; Greenleaf on Evidence, vol. 1, p. 81 (Lewis Ed.).

It is an almost universal rule of economics that the market value of property is determined by the extent of the demand therefor and the ability to supply that demand, this market value usually being increased or lessened according as the demand and supply is increased or lessened. In the absence of pleading and proof to the contrary it is to be presumed that on August 1, 1874, the three towns which had contended for the location of the county seat of Camp county had existing therein similar conditions, with reference to the law of supply and demand, for property such as William H.

Pitts owned in the town of Pittsburg. It is also a matter of common knowledge that where conditions are presumed to exist, such as did exist in Camp county on that date, the location of the county seat at one of these towns would, under this law of economics, enhance the value of property at the county seat over similar property similarly situated in other towns.

So we conclude that the eighth finding of fact by the trial court, to the effect that the principal consideration inducing Pitts to make the conveyance, was the maintenance and retention of the county seat at Pittsburg for the purpose of enhancing the value of property owned by him therein and adjacent thereto, finds ample support in the circumstances existing at the time the conveyance was made, irrespective of the testimony erroneously admitted, which was introduced by the appellees having for its purpose proof of this fact. .

There was testimony introduced by both. parties which had the tendency to throw light on the meaning of the language which we have quoted, and also upon the situation of Pitts at the time he used it in executing the instrument. This testimony is sufficient to support the following numbered findings of fact by the trial judge, to-wit: 1-3-4-5-8 and 9.

Giving effect to these findings of- fact, supported as they are by testimony, this introduction or preface to the written instrument of August 1, 1874, would seem to be justified: “Whereas the undersigned is a citizen of Camp county, Texas, and the owner of considerable real estate located in the town of Pittsburg and its vicinity; and whereas Camp county had been created by

an act of the Legislature, which provided for the holding of an election for the location of a county seat for Camp county; whereas said election was held on June 20, 1874, at which three-places were candidates for the location for the county seat for Camp-county, which resulted in favor of the town of Pittsburg; whereas I am the owner of certain town lots in Pittsburg adjacent to certain other towm lots hereinafter described, the latter being in my opinion suitable as a-place for erecting a courthouse, and other public buildings which may be-necessary to be used by the county of Camp; and whereas I realize that the maintenance and retention of the county seat of Camp county at the town of Pittsburg will have the effect of enhancing the market value of property which I now own or may hereafter own there, so long as the county seat shall be so maintained and retained there; now therefore,”' following which language is the instrument quoted in the certificate.

It is a well settled rule that in construing a contract, evidenced by a written instrument, the intention of' the parties is of primary and controlling importance. Texas Farm Bureau Cotton Association v. Stovall, 113 Texas, 273, 253 S. W., 1101; 23 R. C. L., p. 1216, par. 34. Where the contract is unambiguous, this intention must be determined from the instrument itself, considering all its parts and their proper relation to each •other.

This rule, under the uniform authorities, is not violated by the ■other well settled rule that when the whole consideration is not stated, or the meaning of the language expressing the consideration is not clear, •or where the circumstances surrounding the grantor at the time he used language expressing the consideration is not shown by the instrument, parol evidence is admitted to explain the meaning of the language used, with reference to the consideration. Taylor v. Merrill, supra, and authorities therein cited. When all the language used by William H.

Pitts, in the instrument he executed on August 1, 1874, is given effect by the preface which we have constructed from the findings of fact, it does not vary the meaning of the language used in the instrument actually executed. The phrase “county seat” is used twice in this instrument, the first time being in the granting clause, and the second time in expressing the condition which the grantor imposed upon the grantee, and his sucessors in office, in order to render continuously valid and effective, his act in doing what he did, as evidenced by his written instrument.

This phrase had a definite meaning at the time it was used, and this meaning, of this phrase, as used in this instrument, may be amplified by the circumstances surrounding the parties at the time of its use, though, of course, the meaning could not be varied. It is a cardinal principle of law, as well as statutory in this state, that words are given their usual and ordinary meaning. “Seat” and “site”, when used by prefixing the word “county”, mean the same thing. The county site is “the place where the county business is transacted, the courthouse located and the superior court held.” 15 C. J., 675.

The phrase “county seat” is defined by the Century Dictionary to be “the seat of government of a county; the town (italics ours) in which the county and other courts are held, and where the county officers perform their functions.” This term in re Allison, 13 Colo., 525, 22 Pac., 820, 821, 10 L. R. A., 790, 16 Am. St. Rep., 224, is thus defined: “The term ‘county seat’ in common parlance, as applied to a particular town or city, simply designates the town or city (italics ours) where the seat of the county government • is for the time being.” In Marengo County v.

Matkin, 134 Ala., 275, 32 So., 669, 670, it is said: “ordinarily the term ‘county seat’ applies not merely to the lot and building used for transacting public business, but to the territory occupied by such town as may be designated as the county seat. (Italics ours). A county seat is not necessarily co-extensive with the town of its location. It is not identical with the municipality, and does not move by force of the latter’s expansion. Thus, where

an act of the Legislature selects a certain town as county seat, the board of county commissioners had no authority to move the county courthouse to a portion of the town not embraced within its limits when the act was passed, notwithstanding that act of adding territory to the town was passed after the locating act, and that the actual establishment of the courthouse occurred after the enlargement of the town.” In 15 C.

J., p. 421, sec. 55, it is declared that the term “county seat”, is meant in its ordinary use, the town (italics ours) where the courthouse is required to be established, and where the public records are to be kept, and where the courts hold their sessions, and where the public officers are required to reside or keep their offices. So we conclude that by the phrase “county seat” as used in this instrument, is meant the territory which comprised at the time the town of Pittsburg, which town, being then unincorporated, meant the inhabited territory, and not any particular part of said territory.

Having reached these conclusions, with reference to these phrases used in this instrument, which we have discussed, and keeping in mind the rule of law that, in construing a written instrument every material word used therein must, if possible, be given effect, in arriving at the intention of the grantor, it now becomes necessary to construe that part of the granting clause, following the description of the lots, used in the instrument, which is as follows: “As a place for erecting the courthouse, and any other public buildings which may be necessary for said county of Camp.” The Supreme Court of this state, speaking through Judge Gaines, in Olcott v.

Galbert, 86 Texas, 121, 23 S. W., 985-986, said: “Yet the rule is well recognized that the mere declaration of the uses to which the granted premises are to be applied do not ordinarily import a condition.

When the declared purpose for which the property shall be used is a matter that will enure to the special benefit of the grantor, the courts are more inclined to treat the conveyance as conditional, than when * * * the use is for the benefit of a special class of persons or of the public at large.” It is true, in that case, unlike the facts in this case, the instrument construed did not contain any language expressly stating that the grant was -made upon any condition.

In this case we are not put to the necessity of arriving at the intention of the grantor by applying the ordinary rules of construction of written instruments, since the grantor has expressly stated the condition upon which the grant was made, as well as the circumstances under which it was made. The facts show, without dispute, that the county seat of Pittsburg has not been removed outside of the limits of Pittsburg, as it existed at the time the deed was executed.

The location of the present courthouse of Camp county is just across the street from the former location of said building, the two buildings being about 200 feet apart. As said in Glen Rose Collegiate Institute v. Glen Rose Independent School District, 58 Texas Civ. App., 435, 125 S.

W., 379, 382, where the instrument under construction contains only two expressed conditions of an absolute defeasance or forfeiture of the estate conveyed, both of which conditions had been complied with, prior to the subsequent abandonment by the grantee of the premises, “the fact that the provision to perpetually maintain the institution was inserted in the clause and generally mentioned in the deed, as among the purposes of its execution, but was omitted from the only clause providing for an absolute forfeiture of the land granted, is significant”.

So in this case, we have stated in the instrument, in unambiguous terms, the only condition attached to the title of the grantee, and his successors in office, the happening of which should defeat that title.

This is especially true in view of the general rule that, with certain exceptions not here involved, the instrument to be construed must be construed most strongly against the grantor, and forfeiture of an estate are not favored, as well as where, as in this case, the facts show that the purpose of the grantor, in executing the deed, was for the benefit of all the persons owning taxable property in Camp county, by relieving them of the necessity of having their property taxed to procure funds with which to buy a location for the courthouse and other necessary buildings to be used by the people of Camp county, at the county seat located at Pittsburg.

The law will not imply an intention upon the part of the grantor to impose upon the grantee and his successors in office, any greater condition to be attached to the estate conveyed, or any other condition, than the one expressly stated, under the rule of Expressio unius est exclusio altrius ( — the expression of one thing is the exclusion of another). Here William H.

Pitts in so many words declared, in effect, that the instrument he executed was to be valid and effective so long as the county seat of Camp county should remain within the territory of that town, as it was then situated, but that upon its removal from that territory the property should revert to him and his heirs or assigns. ■ What we have said in the discussion of the language in the instrument last quoted is equally applicable to the last phrase in the habendum clause, which language is: “For the use aforesaid forever,” since this-language has direct reference to the language quoted in the granting clause of the instrument.

It appears from other findings of fact by the trial court, that the grantee and his successors in office did accept the benefits of this instrument, by erecting within a reasonable time after its execution and delivery, a substantial courthouse on the property conveyed, as well as other public buildings apparently necessary for the use of the county, and had maintained said buildings for such use continuously for more than 50 years, when the location was abandoned, as a place for said public buildings, by reason of the facts found, and not controverted, that these buildings had become decayed, obsolete and insufficient to meet the demands' of Camp county, and that at the end of which time the specified use of these buildings had been abandoned, without their having occurred that condition of affairs which would have justified the appellants to have demanded a restitution of the lots conveyed to them, as the heirs of William H.

Pitts. In the absence of proof that the county seat of Camp county had been removed beyond the territorial limits of the town of Pittsburg, as it existed on August 1, 1874, the appellants in this case have no cause of action against Camp county and so long as the county seat of Camp county remains located within said territorial limits Camp county is entitled to the unrestricted possession of the property involved in this case. We therefore recommend that Question No. 1 be answered “No”; that Question No. 3 be answered “No”. These answers render unnecessary and answer to Question No. 2.

The opinion of the Commission of Appeals answering the certified questions is adopted and ordered certified. C. M. Cureton, Chief Justice.