The writer concurs in the majority opinion written by Chief Justice McDonald affirming judgment of the trial court.
The writer does not construe the written instrument in question to be a deed because the same ' could be classified as nothing more than an executory contract for the following reasons:
1. The main consideration is based upon1 Fanning, Taylor and Grigsby to discover minerals on said land.
2. S. D. Hughes bound himself, his executors and administrators, that he would (in the future) release and convey unto the aforesaid Fanning, Taylor and Grigsby one-half the minerals that may be found on the land.
3. All parties recognized the fact that Hughes did not own title to the land, he therefore bound himself to secure (in the future) a patent on said land according tO' the pre-emption laws of the State of Texas.
4. He further agreed that if he ever sold and transferred said land he would bind himself, his heirs and assigns, that he would (in the future) reserve unto the said Fanning, Taylor and Grigsby one-half the minerals.
5. He closed1 the instrument by stating, “ * * * making this Contract binding by law as herein specified.” •
6. In his acknowledgment he acknowledged before the notary public “that he signed executed and delivered the foregoing Contract for the purposes and considerations therein specified.”
In construing a written instrument such as the one in question here, intention of the parties must control regardless of what may be the most appropriate term by which the instrument should be designated, Worley v. Empire Gas & Fuel Co., 129 Tex. 532, 103 S.W.2d 368; Peterson v. Holland, Tex.Civ.App., 189 S.W.2d 94; provided the *702construction that is most consistent with the intention of the grantor as gathered from the terms of the conveyance should he accepted as controlling, Pierce Estates v. Howard, Tex.Civ.App., 100 S.W.2d 749, error dismissed; in ascertaining such intent of a grantor, however, it is not necessarily a function of the court to ascertain what he meant to say but only the meaning of what he did say. Holloway’s Unknown Heirs v. Whatley, 133 Tex. 608, 131 S.W.2d 89, 123 A.L.R. 843.
Conceding, for salce of argument, the written instrument in question is a dead, then, in that event, the rule of after-acquired title will not apply under the authorities announced in the majority opinion, as well as those announced in the case of Clark v. Gauntt, 138 Tex. 558, 161 S.W.2d 270, wherein it was held by our Supreme Court, among other things, “The estoppel in the after-acquired title cases arises from the assertion of ownership made by the grantor in the covenant of warranty, express or implied, or in other recitals in the ■deed. Such assertion is a representation that the grantor owns the land or the estate or interest to which it relates, and having thus represented the fact of ownership, the grantor is estopped to deny that fact.”
As stated before, Hughes did not assert ownership but to the contrary he expressly ■denied ownership.
Then too, it is against public policy for individuals to attempt to convey public .lands. See Lamb v. James in majority opinion.
It is also the opinion of the writer that Fanning, Taylor and Grigsby could only receive from Hughes a right to occupy the land and to receive credit for his inchoate rights of his past occupancy; if, as and when they had completed the unfinished period of occupancy and made proof thereof satisfactory to the state, it was incumbent upon the state to issue the patent. The only consideration required by the state under the pre-emptory act before it vested title was that of occupancy by the applicant or his successors for a period of three years. This was for the sole purpose of inhabiting the state. The facts do not relate that Fanning, Taylor and Grigsby ever occupied any portion of the land. Hence, whatever right they acquired from Hughes they waived it by non occupancy of the land.