"The State of Texas granted to Childress County four leagues of public free school land, situated in Bailey and Cochran Counties.
"On June 20, 1910, acting by and through its Commissioners' Court, Childress County, as First Party, entered into a written contract with S. P. Britt and others, as Second Parties, in which it is stipulated that the County `agrees to sell, and does hereby sell' to Second Parties the four leagues of Childress County school land, which was fully described, upon the following terms and conditions:
"`The total consideration at average of $10.00 per acre to be paid forty years after date, or as hereinafter stated, together with interest on said amount at the rate of five per cent per annum, payable semiannually in advance on the 20th day of June of each year. * * *
"`The said four leagues having been this day, by an order of this court, platted into one hundred tracts, which said order and plat are here referred to and made a part hereof, the same are contracted for and sold on the basis of and according to said plat, and a separate contract and conveyance shall be made for each tract respectively as hereinafter ordered and agreed to; each of said tracts numbered respectively 1 to 25, inclusive, in each of said leagues is contracted and sold for an average price of $10.00 per acre, and a separate contract and conveyance shall be made and executed for each of said tracts respectively according to the classification and price, and it is understood and agreed that each of said tracts is contracted for and sold separately as though only one tract was described; this order and agreement, however, to cover all tracts numbered as aforesaid embracing in the whole the said four leagues, and each of said tracts and the improvements thereon shall stand alone for its purchase price and interest thereon, Parties of the Second Part having this day paid to the Commissioners' Court of Childress County for the use of said County the sum of Eight Thousand Nine Hundred Six and 71/100ths Dollars ($8,906.71), being interest in advance for the first year of the total aggregate consideration for said one hundred tracts, and receipt of the said amount is hereby acknowledged.
"`The said Parties of the Second Part, or their assigns, to have the option to pay the said consideration for each tract separately, or any part thereof, at any interest-paying period, * * * and the payment of said consideration in full, and all accrued interest thereon, for any one tract, shall discharge the entire obligation to Childress County in payment for said tract, whereupon the title to said tract shall vest absolutely in said Parties of the Second Part, or their assigns, and said County shall execute its warranty deed to Parties of the Second Part, or their assigns, for said tract.
"`Failure to pay any installment of interest within sixty days after the date the same becomes due on any tract shall cause this obligation, as to such tract, to become absolutely void, at option of Childress County, and of no further force and effect, and shall cause said tract, and all improvements thereon, to revert to said County without judicial ascertainment. * * *
"`Parties of the Second Part having this day appeared in open court and accepted the terms and conditions of this agreement and contract, it is ordered that W. G. Gross, County Judge of Childress County, shall, in pursuance of this order and agreement, execute one hundred obligations for and in behalf of and in the name of the Commissioners' Court of Childress County, and for said County, and deliver the same to the said Parties of the Second Part, which shall be numbered respectively 1 to 25, inclusive, in each league; * * *'
"In pursuance of this order, W. G. Gross, the County Judge, executed the one hundred obligations to Second Parties, the material portions of each of which are that:
"`Now, therefore, in accordance with said order, contract and agreement above stated, I, W. G. Gross, County Judge of Childress County, acting for and in behalf of the Commissioners' Court of Childress County, Texas and said County, in consideration of the payment this day made to said County, as recited in said Minutes of the Court, and the terms and conditions of said order, do hereby execute these presents and the above mentioned contract as the obligation of said County.'
"Each instrument covered one of the separate tracts, gave the number of acres and the value per acre, referred to and made a part thereof the original contract of sale, contained no granting clause, but a habendum clause which was as follows:
"`To have and to hold' to Second Parties, `their heirs and assigns, forever, all the rights, powers, equities, claims, title and interest in the aforesaid mentioned tract under and by virtue of the contract with Childress County, Texas, as evidenced by the order of its Commissioners' Court above mentioned and referred to.'
"I. C. Enochs acquired the rights of S. P. Britt et al. to the portion of said four leagues of school land situated in Cochran County, and was the record owner thereof on January 1, 1931, and January 1, 1932, subject to the lien in favor of Childress County for the purchase money contained in the original contract of sale.
"It is agreed that the land in Cochran County, which is all that is involved in this suit, is agricultural land.
"The Commissioners' Court of Childress County, at its February term in 1933, cancelled said original contract of sale and declared it null and void because I. C. Enochs had failed to pay the interest installments as they matured, and the validity of this action of the court is not challenged.
"The land was assessed for taxes for the years 1931 and 1932 in the name of I. C. Enochs, and was assessed for taxes for the year 1933 in the name of Childress County.
"The taxes became delinquent and by suit in the name of the State of Texas, which was contested by Childress County, judgment was obtained on a trial before the court against I. C. Enochs for the sum of $3,226.42, the taxes, interest, penalties and costs for the years 1931 and 1932, the tax lien declared to be superior to any lien or right of Childress County, and such tax lien foreclosed on the land against both I. C. Enochs and Childress County, and the Clerk directed to issue order of sale on such judgment.
"Judgment was rendered against Childress County for the sum of $846.50, the taxes, interest, penalties and costs for the year 1933, and decreeing that the judgment be fixed as a lien upon the land, but that no order of sale issue for the taxes for the year 1933; that the amount of the judgment for the 1933 taxes be certified to the Commissioners' Court of Childress County, and the Commissioners' Court of said County was ordered and directed to pay said judgment out of the revenue derived from the land, if any, and if the County had no such revenue that the Commissioners' Court of said County pay the judgment out of its general fund.
"From the judgment foreclosing the tax lien of the State and County against the land for the delinquent taxes due for the years 1931 and 1932, and the monetary judgment against Childress County for the taxes delinquent for the year 1933, said County has prosecuted this appeal.
"The contentions of appellant present some issues of law, revealed by the following questions, which we deem it advisable to certify to your Honorable Court for determination:
"1. Was the interest of Childress County, evidenced by the lien retained to secure the purchase money for the land, superior:
"(a) to the tax lien for delinquent State taxes for the years 1931 and 1932;
"(b) to the tax lien for county taxes for said years?
"2. Childress County not having canceled the contract of sale until in February, 1933, was said County liable:
"(a) for the State tax of 1933;
"(b) for the tax due Cochran County for said year?
"3. Was Childress County, after having reacquired the title in February, 1933, liable:
"(a) for the delinquent State taxes for the years 1931 and 1932;
"(b) the delinquent County taxes for said years?"
