This is a suit brought by the state of Texas to recover certain lands in Hockley and Cochran counties, Texas, for which patents were issued to Greer county, Texas, on July 18, 1887, under color of the general laws of the state granting four leagues of land to each county of the state for school purposes. Texas Gen. Laws, 1883, chap. 55. Greer county, Texas, was created by an act of February 8, 1860, and was organized as a county in 1886. In March, 1896, it was decided by this court that the territory known as Greer county belonged to the United States, and not to the state of Texas. United States v. Texas, 162 U.S. 1, 40 L. ed. 867, 16 Sup. Ct. Rep. 725. Thereupon, by act of Congress of May 4, 1896, chap. 155, the same territory was organized as Greer county, Oklahoma,-the present defendant, plaintiff in error. 29 Stat. at L. 113, chap. 155. On April 13, 1897, Texas passed a law purporting to set aside the land in controversy for the support of schools in Texas, and directing proceedings to recover the land against all adverse claims. Gen. Laws, 1897, chap. 72. Then this suit was brought. The defendant, among other things, set up that the state was attempting to impair the obligation of its grant.
The case was heard on agreed facts, and the state district court decided in favor of the state, on the ground that the general laws of Texas authorized patents to be issued to the counties of Texas only, and that therefore the patents were void. Another suit was brought against a purchaser from the de facto Texas county of a part of the land, in which the supreme court of the state decided that the purchaser got a good title, holding that the action of the state legislature still was conclusive on the court, notwithstanding the decision in United States v. Texas. Cameron v. State, 95 Tex. 545, 68 S. W. 508. The present cause was taken to the court of civil appeals, which distinguished Cameron v. State, and affirmed the judgment on the different ground that the grant was for public school purposes within the state of Texas; and, as the defendant could not and would not use the land for such purposes, the state was entitled to have the patents canceled and to recover the land. 31 Tex. Civ. App. 223, 72 S. W. 104. Then a writ of error was obtained from this court to enforce the constitutional right alleged by the defendant, as stated above.
The decision below and in Cameron v. Texas suggest interesting questions, which it is not necessary to answer. It may be doubted how far any court can be bound by legislation after this court has declared such legislation beyond the power of the state, any more than it would be if the law had been held unconstitutional. It would be curious to consider whether the mutual mistake in a matter which, on the face of the transaction, obviously went to the root of the gift, was of such a nature as to warrant an avoidance when the mistake was discovered, including the question whether the mistake was one of law or fact. See Bispham v. Price, 15 How. 162, 170, 171, 14 L. ed. 644, 648; Upton v. Tribilcock, 91 U.S. 45, 23 L. ed. 203; Snell v. Atlantic F. & M. Ins. Co. 98 U.S. 85, 90-92, 25 L. ed. 52, 55; Griswold v. Hazard, 141 U.S. 260, 284, 35 L. ed. 678, 11 Sup. Ct. Rep. 972, 999; Hirschfield v. London, B. & S.C.. R. Co. L. R. 2 Q. B. Div. 1. There is the further consideration whether the gift created a public charity, as contended by the plaintiff in error, and if so, or, whatever the nature of the trust, whether there is such a failure of the donee as to invalidate the gift and to destroy the legal title of the defendant, if otherwise good. See Stratton v. Physio-Medical College, 149 Mass. 505, 508, 5 L. R. A. 33, 14 Am. St. Rep. 442, 21 N. E. 874, and cases cited.