Page:Federal Reporter, 1st Series, Volume 10.djvu/339

 PRESTON 17. WALSH. 327 �the state is not a party to this suit. The relief asted is in the nature of specifie performance of the contract, or, at least, amounts to a decree for title. For the court to grant such relief it is imperative that the party required to perform, or who holds the legal title, should be before the court. Pomroy, Specifie Performance, § 483 et seq. ; Daniell, Ch. 194, 196; Perry, Trust, §§ 873, 874. See Justice Pield in 1 Sawy. 685. And authorities can be multiplied to any extent. It 'will be noticed, too, that under the contract, af ter the performance of certain conditions precedent, (with regard to survey and selection of sections,) it is the govern ment of Texas that is to oonvey or cause to be conveyed the title to the lands surveyed and selected. To grant the relief asked would be to compel the conveyance of title f rom the state to complainant of unloeated and unsurveyed lands, and allow the location and survey of any of the vacant lands of the state, which I eonceive to be wholly outside of the contract ; and, besides, would be taking praotical possession, under this and other injunc- tions asked, of the land-office of the state. In Hancock v. Walsh Judge Woods says : �" This is not a suit against the state, and does not seek to deprive her of the power of disposing of her own lands in her own way, for the lands which the complainant seeks to appropriate ai'e not the property of the state." 3 Woods, .;i66. �Under the act of May 12, 1846, (section 3952 of the Code of 1879,) which was in force at the institution of this suit, it was required that "every patent for land emanating from the state should be issued in the name and by the authority of the state, under the seal of the general land-office, and shall be signed by the governor and countersigned by the commissioner of the general land-office." �In the act of 1879, denominated by counsel as the "obstruction act," it is provided that before any certificate for land reserved by the commissioner of the land-office, in cases where the commissioner bas doubts or where there is a suit to compel or restrain the commis- sioner in the issuance of certificates, shall have any force or effect, the same shall be submitted to and be countersigned by the governor of the state. �It is urged that this obstruction law must be disregarded, because passed since the institution of this suit, with a view to affect the remedies to be granted by the court, and that it impairs the vested rights of complainant under his contract. I am not prepared to say that complainant, under the Mercer contract, acquired any vested right as to the forms and manner in which the title of the republic ��� �