The trade between the parties for a tract of land of 238 acres, identified by metes and bounds, being part of the land upon which the Thomas Robbins’s certificate was located by Daily, being cancelled, it is unnecessary to make any further reference to it.
After it was cancelled, the Robbins’s certificate having been previously lifted and located elsewhere, the land was vacant public land, and the obligation sued on, which was given for 317 acres, on which said Rodgers resided, was without consideration. Hor are there any facts shown in the record, which, by reflection back upon the transaction, could make it a valid cause of action; for Daily had no title to the land when the obligation was given, nor when the suit was brought. And by the evidence of Cundiff, his own witness, and the chain.of title from Ross M. Bridges, adduced in evidence, it *583appeared at the trial that he had still acquired no complete title. There was no proof that Matilda Bridges and Mary Freeman were the widow and heir of Boss M. Bridges, and if that had been proved, the papers adduced showed that Daily and Cundiff owned the land, and not Daily alone.
Giving a bond for title was an implied assumption that he had, at the time of the sale, some sort of title, that either was perfect, or might be perfected, or made valid. That entered into the consideration of the obligation for the cotton.
Rodgers, upon finding that the land was entirely vacant, had a right to repudiate the executory contract in relation to the purchaser of it. (Green v. Chandler, 25 Tex., 155.) Being public land, and Daily having no sort of claim to it, either at the sale or at the bringing of the suit, Eodgers was not bound to surrender or abandon the possession of the land, but might take steps to appropriate, by pre-emption, one hundred and sixty acres of it as a homestead, under the law of 1870. (Paschal’s Dig., arts. 7045, 7048; Wheeler v. Styles, 28 Tex., 240; Spier v. Laman, 27 Tex., 205; Jennings v. De Cordova, 20 Tex., 515; Cravens v. Brooke, 17 Tex., 273; Pain v. Miller, 35 Tex., 79.)
The bond from Daily to Dodgers does not describe and identify any particular 317 acres of land, further than being “the same upon which Eodgers now resides,” and being on the O. M. Vinton league. Upon a survey being made, it was found that Eodgers’s house and improvements were not on the Vinton league; and there were no metes and hounds, or other objects specified in the bond, by which the shape or exact locality of the 317 acres of the land could have been ascertained. This uncertainty was not attempted to be aided by any extrinsic evidence in the-record, if it were practicable to have cured so palpable a defect in the bond, so as to make it a valuable consideration for a promise to pay the cotton on the part of Eodgers.
This being a suit upon an obligation for cotton, brought by Daily against Eodgers, and Daily having shown by the *584allegations of Ms own pleadings, and by the evidence adduced by him on the trial, that the cause of action set forth in his original petition is not a valid one, the verdict and judgment in his favor is erroneous, and must be set aside, irrespective of whether or not Rodgers has acquired any right to the land by his pre-emption claim. It is therefore, in this suit, unnecessary to consider the numerous questions arising upon the charge of the court, the charges refused, the bills of exceptions, and other matters presented in the assignment of errors.
It is not perceived how the cause of action in the original petition can be maintained by any amendment, consistent with the allegations of the amendments that were made, - showing that the land for wMch the obligation was given was entirely vacant and public domain, both when the sale was made and when the suit was brought. Who, now, has the better right to the land, is not the question in this suit. That must be settled in another suit, unless the parties can amicably adjust them respective claims to it.
Because the plaintiff below has failed to show a good cause of action, either in his pleadings or in his evidence, the judgment is reversed, and the cause is remanded.
Reversed and remanded.