Abner Taylor v. J. M. Robinson, 72 Tex. 364

Walker, Associate Justice.—Abner Taylor, the contractor for building the new State capítol, appeals from a judgment against him in a suit against appellee, the tax collector of Oldham County, for money paid him upon unearned capítol lands included within the contract for building the new capítol, assessed for the years 1886 and 1887. The only question submitted to the court is whether upon the facts shown the lands described in the petition were “held under a contract for the purchase thereof belonging to the State.” It is not questioned that the Legislature had the power to include lands so held as subject to taxation. The

article 4691 of Revised Statutes so providing was in force at the execution of the contract for building the capitol. It would enter into all contracts subsequently made for the purchase of lands belonging to the State. If the contract in its legal effect places these lands within the meaning of the statute any intent otherwise on the part of the State officials in making it would be immaterial. They could not exempt the lands from the effect of the statute had they attempted to do so.

The original contract for building the new capítol, after stipulating the dimensions, material, and style of workmanship required, the time within which it was to be constructed, and after the stipulations undertaken by the contractor, obliges and binds the State “to convey to said party of the second part (the contractor) the complete and perfect title to three million acres of land situated in the State of Texas and in the counties of Dallam, Hartley and Oldham,” and in

section 19 of the contract “the party of the second part shall receive in the manner herein set forth titles to the lands herein agreed to be conveyed in the numerical order heretofore mentioned, at successive stages of the construction, as follows,” etc. July 25, 1885, after the work of construction had been entered upon, a supplemental contract was executed making changes in the style and material and extending the time within which it should be completed.

It Avas further stipulated that the lease of even date “should be a part of the contract as fully and expressly as if the same had been at length set forth.” The lease contained the following: * * * “ And whereas, it was an important consideration in inducing said Taylor to consent to said changes that his right to use the lands set apart to pay for the erection of said building should be settled, it is therefore agreed between said State and said Taylor as follows: 1.

Said State hereby leases to said Taylor and his assigns upon the terms hereafter stated all of three million acres of land set apart for the building of a new State capítol not yet earned by said Taylor, said land being described as follows,” etc.

It was further stipulated that Taylor should pay rent'at six cents per acre; but if Taylor should “complete the capítol according to contract then no rent whatever is to be paid for said lands, said lands then being the property of said Taylor or his assigns free from any claim on the part of the State for rent as though this agreement had not been made. * * * Said Taylor and his assigns are to have and are hereby vested with full rights to possess, use, and enjoy all of said lands until,” etc. After this lease was made, and under it, the contractor took and held possession of the land.

Possession theretofore had been denied him. It was admitted that all the lands had been earned and conveyed to Taylor after January 1, 1887, and within less than three years from July 25, 1885. Considering the contract with reference to the main object on the part of the State, it was made for the construction of the new capítol building. The land had been set apart by law for the purpose and was used in payment as the consideration or price, to be conveyed in a stipulated order of surveys, in parcels, from time to time when earned in the progress of the work of construction under the contract.

No money valuation or price was fixed to the lands. The land was as a fund to be-passed to the contractor in payment upon the several stages toward completion of the work. On the other hand, Taylor’s object in the contract was the acquisition of the land—of the several surveys named and in the order as in the contract—the consideration on his part being the labor and materials furnished upon the building. The contract provided a mode by which he could earn them and to have title to them in parcels when earned.

Until earned he had but the contract by which he could earn them; and when earned his right to title to them accrued. When he should have obtained them his acquisition would be a purchase and he a purchaser,, even in the popular signification of the terms. It is contended that these lands were not held in any legal sense under the capitol contract. “As a technical term ‘held’ embraces two ideas— that of actual possession of some object of dominion or property, and that of being invested with legal title or right to hold or claim such possession.” 7 S. 0., 99, Witsel v.

Charleston, cited in Winfield’s Adjudged Words and Phrases. By the terms of the capitol contract possession of the land was not conceded by the State. If the contractor claimed it, it does not appear that, he could have obtained it. The contract was silent upon the subject. It. provided for his earning the lands, and that when earned the title should, be made to him. It may be questioned whether the State officials had any power to lease the lands (The State v. Day Land and Cattle Co., 71 Texas, 252). However, the lease did convey the possession.

This use of the land was of value and formed part of the consideration from the State to Taylor in the supplemental contract. It is also evident that no greater estate in the lands would pass by the lease by reason of the want of authority to make it, nor would the holding under it be more onerous from the absence of such authority. Until the making of the supplemental contract and lease Taylor neither had the possession nor the right to it.

He did not have the legal title to the lands until the State issued such title; nor did he have the equitable title until earned, when an equitable claim to them would arise, and with such claim would be the right to possession. The tenure of lands held by contract of purchase belonging to the State applies completely to a large class of land holders under the laws providing for the sale of the public school, university, and asylum lands. Purchasers of these lands held by contracts stipulating the price and time of payment, title to be acquired upon payment.

By these sales the settler without means is enabled to buy, the State securing settlers upon the lands, interest upon the price, and taxes. In these sales the purchaser in all cases had the right to possession and in most cases took actual possession. Contrasting these contracts for the purchase with the capítol contract the difference is evident as to the quantity and quality of the estate obtained by the parties dealing with the State.

In the one there is complete ownership, conditioned only upon the payment of the stipulated purchase money; in the other none of the rights of property are given— only the right to earn the lands and to the title when earned. The State could dictate the terms of sale in both cases. ¡Nothing passed against the State but what was conceded by the terms of the several contracts. It is reasonable that the

article 4691 referred to the lands which answer fully to the description. The lands claimed by Taylor do not answer to the description as held under any such contract as expressed in this section. It seems that the absence of any holding or tenancy of the lands in any legal sense would be fatal to the claim for taxes under the statute. Considering together the facts constituting the grounds for the claim for taxes upon these lands, we have: 1. The contract for the building of the new capítol, that being the main object, the lands to be used in payment when earned. 2.

In this contract the right of Taylor to the possession is not given, and under it there was no holding in fact. 3. Under the lease of July, 1885, possession was conceded to and was taken by Taylor, and during the years for which the taxes were collected the lands were held under the so called lease. 4. Until earned Taylor had no title, legal or equitable, in the lands; when earned an equitable claim would arise to them.

And finally, contrasting the tenure of these lands with the estate of the purchasers from the State under contracts as provided upon the sales of the public school and other lands belonging to the State, we conclude that these lands were not subject to taxation as lands held under a contract for their purchase. The lands were held under the lease contract, but the taxes are not claimed upon the value of the term of the lease. The judgment should have been for the plaintiff. Judgment reversed and here rendered for the amount sued for and costs. Reversed and rendered. Opinion December 21, 1888.

Motion for rehearing was overruled at Galveston Term, 1889.