On Motion for Rehearing.
It was not without difficulty that we arrived at the conclusion stated in our original opinion, that the state was entitled to partition herein. Appellants, in their motiop for a rehearing, assert that if it be conceded that the sale was by the acre, and that by *972mutual mistake tlie surveys are excessive to the amount found by the trial court, still the state is not entitled to recover such excess by a partition of the lands remaining in the hands of the trustees, appellants herein, but that its remedy is to reform the grant and to recover the specific land patented to the Capitol Company, after the full amount of 3,000,000 acres had been patented, none of which is included in Exhibit X, and as to which the partition was decreed by the trial court.
The able argument, in support of their contention on this point, made by appellants in connection with their motion for a rehearing, has caused us to carefully review our decision on this point, and, having done so, we have reached the conclusion that we were not in error as to this matter.
. The argument of the appellants may be briefly summed up as follows:
[24] The state contracted to convey to the contractor, in payment for constructing the new eapitol, 3,000,000 acres of land, by good and perfect title, the same to be conveyed from time to time as the work progressed, beginning with survey No. 1, and continuing consecutively, by numbers, until the entire 3,000,000 acres had been granted; that the grants were made substantially in this manner; that as each patent was issued the Capitol Company obtained, not only the legal title to the land therein described, but also the equitable title to all of such land as it paid for from time to time; that it paid for 3,000,000 acres, and that it is immaterial that any or all of the surveys contained excesses, so long as the total amount actually included in the surveys by their consecutive numbers did not exceed 3,000,000 acres, and that up to this point the appellants obtained both the legal and equitable title to the land described in the patents issued to it; that if the officers of the state issued to the Capitol Company patents to any lands after this point had been reached, taking the surveys in their numerical order, such patents may be void for want of authority to issue the same, but, if so, the state’s remedy is to sue for the recovery of the specific lands so illegally granted, and not for a pro rata share in the lands both legally and illegally granted.
To our mind, a sufficient reply to this very plausible contention is this: So much of the contract as provided for the issuance of patents To surveys in their numerical order, beginning with No. 1, is directory. In fact, the same was disregarded in a number of instances, without objection, so far as the record shows, on the part of the contractor.
The contract to build the eapitol for an agreed consideration was one, and indivisible. It was not to pay so much for constructing a certain part of the building, and so much for additional parts. The advanced payments made from time to time, as the work progressed, is such as is usually found in builders’ contracts, and it is immaterial that the payments were made in acres of land instead of dollars.' Such payments are made by owners for the accommodation of contractors, for the reason that the owner feels that he is protected therefor by the value of the work done, a portion of which is usually held back. In the instant case, 10 per cent, was held .back under the contract until the building was completed. The contractor had not earned a certain part of the land when he completed, say the foundation, another part when he had completed the walls, and so on. He was entitled, under the contract, to receive patents to a certain number of surveys when he had completed certain portions of the buildings, and such patents conveyed to him the legal title. But had the contractor abandoned the work after completing the foundation, he would have had no more equitable right to retain the land thus granted to him than .he would have had to retain the money advanced to him had the contract been to pay money. It is true that where money had been paid, by reason of the fact that ordinarily the same cannot thereafter be identified, the owner’s remedy is a suit for damages. But here the identical thing advanced on the contract can be identified, and, if the building had not been completed, and if the state had been damaged thereby to the value of the land patented, we see no reason why it could not have recovered all of such land. This upon the ground that, though patents had been issued for same, the consideration had wholly failed.
We think the contractor held the lands patented to him from time to .time subject to the superior equity of the state, depending upon the contractor complying with his ex-ecutory contract, and that the contract remained executory until the eapitol was completed.
[25] The contract was that the contractor was to receive all of the leagues for constructing the eapitol, the same having been theretofore surveyed and numbered consecutively. He did receive patents to all of the surveys, and took possession of the same, and the Capitol Company, through its trustees and assignees, now has possession of all of said surveys. The sale was by the acre. These surveys were supposed to contain 3,000,000 acres, no less and no more. By mistake of the surveyor, they contain an excess of 55,089 acres, exclusive of the alleged vacancies. This excess, is not uniform in each league, but it is in many leagues scattered throughout the whole body of land. Such excesses are of the average value of the land. The Capitol Company has sold a large portion of these lands at prices acceptable to it, and presumably has never returned any part of the purchase money so received. It has *973enough land left in the hands of the trustees to satisfy the equitable demands of the state. This is a suit in equity. The trial court had all the power of a chancellor. We do not see upon what grounds the appellants can complain, if the state sees proper to respect the sales made by the trustees and their predecessor in title, the Capitol Company, and demand, as it has done in this suit, the amount of land to which it is equitably entitled to be taken out of the lands still unsold.
The appellants further contend that, even though it be conceded that the state is the equitable owner of the excess, it is entitled to recover the same only in the event that appellants should fail or refuse to pay for such “excess,” and that the state should have sued to recover the value of same, and for partition only in the alternative, and that the judgment herein should have been so rendered.
In support of this contention, appellants cite O’Connell v. Duke, 29 Tex. 300, 94 Am. Dec. 282, and Willoughby v. Long, 98 Tex. 394, 71 S. W. 545. In neither of these cases was the issue presented as to whether payment for the excess, or recovery of the same ■ by partition, should have precedence'. In O’Connell v. Duke, the appellant could not have complained as to this, for he was given the option to pay for the excess and keep it, or to surrender the same by partition. Appellant’s contention was that the appellee was entitled to neither the excess nor to a moneyed judgment for the same. The court stated that the question was whether appel-lee could “recover such surplus, or compensation for it in money.” That is, one or the other, and not which.
Willoughby v. Long was not a suit by,a vendor to recover an excess or pay for the same. Long was not the vendor, but was seeking to become the vendee from the state. The issue was whether the deed -from the state to Glenn conveyed the entire survey, in which there was an excess of 320 acres, or only 640 acres off of the south end of samé. In the latter case Long was entitled to purchase the unsold, 320 acres. In the former case he acquired no right by virtue of his application to purchase. The Supreme Court-held that the deed to Glenn conveyed the ■whole survey,
[26] Our view of the law on this subject is this: Where a vendor, by reason of a mistake in his deed, is the equitable owner of an undivided interest in the land conveyed by him, he has the right to have his interest set apart to him by a judgment in partition. If the purchaser desires to retain such excess, and can show an equitable reason why he should be permitted to do so, upon his tendering payment for same, he should be adjudged to be the owner of such excess. In the absence of an offer to pay for the excess, judgment for partition should be entered. Such were the facts, and such was the judgment of the trial court in the instant case. In this there was no error.
[27] Though we have not chakged our views as to the existence of the vacancies as found by us, when tested by rules of law as to boundary, we have nevertheless concluded that we fell into error in sustaining the judgment of the trial court in awarding the state recovery of such-vacancies.
It is evident that the state intended to convey these lands in solid bodies, without any vacancy between any of the surveys. The .field 'notes of the various leagues call for each other, and the maps prepared by the state’s surveyors, to which bidders looked, showed that the lines of the surveys were coterminous. It was the intention of the state to so grant the surveys, and of the contractors to so receive them.
By reason of the fact that several surveyors were doing the work in the field, corners were established on the ground in such manner as to leave vacancies, as stated in our original opinion herein, but in each instance these surveys called for each other. These vacancies have been sold by the Capitol Company, and the parties purchasing them have for many years been in possession of the same, and have made improvements thereon, in ignorance of the mistakes of the state’s surveyors, which created these vacancies. We think, under these circumstances, the equitable title to these vacancies has been in the Capitol Company ever since the capitol building was completed. The patents should have embraced these vacancies, and equity regards that as having been done which ought to have been done.
By including these vacancies within the grants to the contractor, and increasing the excess as found by the trial court by the aggregate amount of such vacancies, to wit, 4,192 acres, the contractor gets the full amount of his 3,000,000 acres; the state gets the full amount of its excess; and the purchasers of these vacancies get what they have bought and paid for, and are not made to suffer for the mistakes of the state and the contractor, for which they are in no wise to blame.
For the reason stated, so much of our judgment herein as affirmed the judgment of the trial court awarding the vacancies and costs against the defendants in the vacancy suits is here set aside, and the judgment of the trial court is here reformed, so that the state recover nothing as to the defendants in the vacancy suits, but that the defendants, therein go hence without day, and recover of and from the state of Texas their costs in this behalf expended, and that the appellee, the state of Texas, pay all costs incurred by reason of its suit herein against said defendants. That the judgment of the trial court *974awarding to the appellee 55,089 acres as excess be and the same is here reformed so that the judgment shall be for an excess of 59,281 acres. As thus reformed, the judgment of the trial court is affirmed.
The motion for a rehearing is overruled.
Judgment reformed and affirmed.
Motion overruled.