In refusing writ of error in this case we deem it expedient to say that it seems to us that the opinion of the Court of Civil Appeals proceeds upon a misapprehension of what was decided by this court in the case of Lamb v. James, 87 Tex. 485 [87 Tex. 485]. There are expressions in the opinion in that case which indicate that the court were of opinion that the contract there under consideration was illegal as being against public policy and therefore void; but that the case was not decided on that theory is shown by the judgment which was therein rendered by this court. In the judgment Lamb was not only permitted to cancel the notes executed by him and Edwards to James, but was also allowed to recover the purchase money which had been paid by him. If the contract had been illegal the court would have left the parties where they left themselves, and while it would have cancelled the notes, it would not have permitted a recovery of the purchase money. Beer v. Landman, 88 Tex. 490. The gist of the ruling in the Lamb case was, that the vacant unappropriated public domain *Page 651 which was attempted to be sold by James to Lamb and Edwards, furnished no consideration for the contract. There is no statement of facts found in the record in the case before us, but we are of opinion that it appears from the conclusions of fact found by the trial judge that all the land for which the notes in controversy were given was, at the time of the purported sale, public domain, and that the case falls strictly within the rule laid down in Lamb v. James, supra.
The Court of Civil Appeals having reached a correct result in disposing of the case, the application for the writ of error is refused.
Writ of error refused.
MAY, 1898.