Seaborn Gilmore, Chief Justice, &c., v. Kesiah Hayworth and another, 26 Tex. 89

Roberts, J. It is unnecessary to notice the uncertainty of the petition, verdict and decree, in ascertaining the particular parts of the land sought to be recovered, as the important question arising upon the deed of donation must determine the case. There will be a “ resulting trust when the purposes for which an estate has been conveyed fail, by accident or otherwise, either in whole or in part, or if a surplus remains after the purposes of the trust are satisfied.” (4 Kent’s Com., 307.) This is the principle which is invoked to sustain the verdict and judgment in this case.

But an examination of the deed will show that it is not applicable. The deed donates the land to “ the county of Tarrant ”—“ to have and to hold the same forever for a town site, on which the town of Birdville, the county seat of Tarrant county, is now located, or for what other use the county may see proper to convert the same.'1'1 Now the fact that the county seat of Tarrant county remained at Birdville for several years, and was afterwards removed six miles to Fort Worth, does not raise a resulting trust in favor of the donors for that part of this tract which remains unsold in lots by the county.

For as to the streets and public squares that may have been dedicated in the plan of the town, the lot holders as well as the public may have an interest. (Campbell County Court v. Town of Newport, 12 B. Monroe’s R., 538.) And as to the balance, the county has a right, under the express terms of the deed, to convert it to what use it may see proper. . A distinction must be taken between the use declared in the deed and the motive or consideration which prompted the donation. The latter may have in whole-or in part failed, but the former has not.

Being a donation, there was no legal consideration, and therefore there could be no failure of consideration. The motive of the donors may have been the enhanced price in the sale of their adjoining lands. They may have realized that, while the town remained at Birdville, or they may not. That is a consideration speculative in its nature, and not a legal consideration, upon which the deed was based; and therefore no consideration in law at all. The county is not bound by contract to continue its county seat at one place, with persons who make donations for the benefit of the county seat.

And if in any case it should lose the right to retain land donated, upon its removal, it would not be upon the principle of a breach of contract, which would authorize a recision; but it would be on account of receiving a donation of land limited to a particular use or purpose which had failed. (Armstrong v. Bd. of Coms., 4 Blackf., 218.) We are of opinion that this deed was an absolute donation for any use, and that a removal of the county seat did not give appellees a right to recover the land back. Judgment reversed and cause remanded. ' Reversed and remanded. Wheeler, C J., dissenting.