and assessed thereon for the year 1877, and that the comptroller became the purchaser of a certain described tract, (embracing the land involved in this suit,) for a mentioned sum. After the description of the land sold, the deed recites the following, viz.: “Assessed to H. F. and J. W. Lucas, which said sum was the whole amount of taxes due and unpaid on said tract of land for the year aforesaid, together with the interest and costs due thereon, and the charges of such sale." It is evident that the assessment to the Lucases mentioned in the deed is of the land described therein, and for the year 1877, and the rejection of the deed offered by defendant for the reason that it was not shown that the land was assessed to H. F. and J. W. Lucas in 1877 cannot be sustained.

It is further insisted that as the evidence showed a conveyance of the land to H. F. and J. W. Lucas in 1869, and that they claimed to own it until 1882, when they sold it to the Florida Savings Bank & Real-Estate Exchange, an assessment to them in 1877 was proper and legal. The tax deed to Greeley, recorded in June, 1875, was prima facie evidence of title in him, and, without evidence to impeach it, divested all the title out of the Lucases acquired by the conveyance to them in 1869. After the recording of Greeley's tax deed in 1875, the record evidence then was that he was owner; and, as the Lucases were not in possession, the land could not, on this showing, have been legally assessed to them. The deed offered by defendant would have furnished prima facie evidence that the recorded title of the Lucases had been extinguished, and a claim of ownership of the land, without avoiding in some way the tax deed, would not have made them owners. Conceding the prima facie validity of the tax deed to Greeley, he was owner in 1877, and not the Lucases.

Another objection to the introduction of the deed is that no evidence was introduced to show that Greeley still owned the land under the tax deed issued to him in 1875, and, for aught that appeared, he may have quitclaimed it back to the Lucases before 1877. In order to show that Greeley, and not the Lucases, owned the land in 1877, the tax deed to Greeley issued in June, 1875, was offered in evidence. If the title was vested in Greeley in June, 1875, it remained in him until divested in some way recognized by law, and, in the absence of any showing to the contrary, would still be in him in 1877. Hewitt v. Butterfield, 52 Wis. 384, 9 N. W. 15. Counsel for appellees say: "This deed cannot be said to be admissible as tending to prove ownership in Greeley, because the court only ruled it out when defendant below admitted that was all the evidence he had to offer; and said tax deed to Greeley alone, or considered with the testimony offered, was not admissible." What

more was necessary to show title in Greeley in 1877 than to introduce a deed vesting the title in him prior to that date? The court cannot assume, in the absence of any showing, that Greeley reconveyed the land to the Lucases, or any one else, before 1877; and, if such was the case, it was the place of plantiffs to have inquired into it, and made it appear. The tax deed being prima facie evidence of title in Greeley in June, 1875, defendant had a right to rely upon it as prima facie evidence of title in him in 1877, and there is no force in the objection stated.

Another objection is that defendant and plaintiffs claim title through and under the same source of title, and that defendant cannot be permitted to show title in a third party. This contention is based upon the evidence of Greeley that the Lucases claimed to own the land in controversy in 1882, when they sold it to the Florida Savings Bank & Real-Estate Exchange, and that the bank sold it to Cash, of whose estate defendant is administrator. It is true, Greeley testified that the Lucases claimed to own the land down to 1882, when they sold it to the Florida Savings Bank & Real-Estate Exchange, and that Allen Cash acquired title from the bank, but this does not show that the defendant was defending on the title derived from the Lucases through the bank. He did not offer any deeds of conveyance under this source of title, and was content to rely upon the tax deed to Greeley to defeat the plaintiffs' deed. We do not concede that, where both parties in an action of ejectment claim under the state through successive tax titles, either would be precluded from denying the validity of the other's deed. But, without deciding this, we have presented by the record the case of a defendant in possession seeking to defeat a recovery against him, based on a tax title, by showing that the assessment upon which the tax deed rests was illegal; and, if he can accomplish this, plaintiffs' deed was void, and they were not entitled to recover. The tax deed offered by defendant embraced the land in controversy, was in compliance with the statute, and was made prima facie evidence of title in Greeley at the time of the assessment in 1877. The land was assessed to the Lucases, and it was shown that they were not at the time of the assessment in possession, and we think that the court erred in excluding the deed offered by the defendant.

It is further objected by counsel for appellees that the tax deed offered by defendant below should have been executed by Edwin Higgins as clerk of the circuit court of Duval county, under the seal of that court, and not as county clerk, with the seal of the county court attached. It is insisted by appellant's counsel that this objection was not raised in the trial court, and cannot be made here. It does not appear that the objections made in the circuit court, and the rulings of the court thereon, rejecting the

deed, include the one just mentioned; but, waiving the point as to the right of plaintiffs to raise the objection here, we think it cannot be sustained. The act under which defendant's deed was executed provides that it shall be executed by the county clerk, with the seal of the county court affixed, and in this respect it was in compliance with the statute. The county clerk and circuit clerk were one and the same officer, under the constitution of 1868, and he is the officer referred to in the act of 1872 as the one to make the deed. Sams v. King, 18 Fla. 557. The county court has a seal, and, under the former constitution of 1868, the circuit clerk was also clerk of the county court. Stockton v. Powell, 29 Fla. 1, 10 South. 688. A deed executed by this officer as circuit clerk was held to be good in the case of Sams v. King, and any substantial compliance with the statutory form will be sufficient. the authorities are uniform that, where the legislature has prescribed the form of a deed, a compliance with it must be held good; and, this being the case, the objection raised cannot be sustained. Cooley, Tax'n, 515; Black, Tax Titles, § 211; Bell v. Gordon, 55 Miss. 45.

But

1. The right to supply a city and its inhabitants with gas by the use of pipes laid in the public streets is a franchise, and the service performed as a consideration for the grant of such a franchise is of a public nature. Where the power to grant such a franchise is conferred upon a municipal corporation, it belongs to those held in trust for the public, and such grants from the city should be strictly construed as against the grantees.

2. The contract as it exists between the municipality of Pensacola and the Pensacola Gas Company, and contained in an ordinance passed by the city of Pensacola in November, 1882, an agreement entered into between the provisional municipality and the gas company in August, 1885, and an ordinance passed by the provisional municipality in May, 1891, all of which are set out in the record in this cause, construed to impose upon the gas company the duty of supplying the municipality with gas for public purposes as the public necessities require, and also to furnish the necessary pipes for conducting the gas to be supplied, and to erect the necessary street lamps, with the burners specified, and light, clean, and extinguish them for the period mentioned in the said contract, upon a compliance with the terms thereof on the part of the municipality.

3. The enforcement of the specific execution of a contract in a court of equity is not a matter of strict legal right, but rests in the sound discretion of the court.

4. It is incumbent upon him who seeks in a court of equity the specific enforcement of a

contract to show that he has done, or offered to do, or is then ready and willing to do, all the essential and material acts required of him by the agreement at the time of commencing his suit, and also that he is ready and willing to do all such acts as shall be required of him in the specific execution of the contract, according to its terms.

(Syllabus by the Court.)

Appeal from circuit court, Escambia county; W. D. Barnes, Judge.

Bill by the provisional municipality of Pensacola against the Pensacola Gas Company for specific performance of a contract. There was decree for complainant, and defendant appeals. Reversed.

The other facts fully appear in the following statement by MABRY, J.:

The provisional municipality of Pensacola filed a bill in the circuit court of Escambia county against the Pensacola Gas Company to compel the specific performance of an alleged duty on the part of the gas company, growing out of contract, to erect public gas lamps at such public places in the municipality as it should require.

The city of Pensacola, predecessor of the provisional municipality, by ordinance passed November 13, 1882, granted to Francis Walsh, his associates, successors, and assigns, as individuals, or as a body corporate, under the name of the Pensacola Gas Company, the exclusive privilege, for the term of 30 years from the passage of the ordinance, of erecting gas works in said city, and to use the streets, alleyways, and public grounds thereof for the purpose of putting down therein pipes to be used in conveying gas for the use of said city and its inhabitants. In the second section of this ordinance it was provided that, in consideration of the privileges granted, Walsh and his associates, as individuals, or as a body corporate, should commence the construction of said gas works within four months from the date of the ordinance, and complete the same within eight months from the date of commencement, together with the laying down of such pipe as should be necessary for use in the business and inhabited parts of the city. The third section enacts that, as a fair consideration for the privileges granted, Walsh and his associates shall be required to furnish the citizens with gas of good quality at a rate not to exceed $3 per 1,000 cubic feet, and to the city for public uses, as required, at a rate not to exceed $2.75 per 1,000 cubic feet. Provision is made against a temporary failure to perform conditions of ordinance on account of accident, or other causes not within human control, but it is not necessary to refer to it. The fifth section ordained that all excavations of streets, alleyways, and other grounds should be made with the least possible inconvenience to the public, and that the said streets, alleyways, and grounds should be left in as good condition as before putting down the pipe.

In August, 1885, the provisional municipality of Pensacola and the Pensacola Gas Company entered into an agreement as follows, viz.: "For and in consideration of the covenant and agreements hereinafter mentioned, the said Pensacola Gas Company agrees to furnish the said city of Pensacola with a number of street lamps, not to exceed 137, the said gas company to light, extinguish, clean, and keep in good repair said lamps without any charge to the said city. The said lamps to be supplied with gaslights as follows: 37 lamps to be provided with a 14-candle burner, to furnish a 14-candle light under the average pressure carried on the mains; 100 of said lamps to be provided with a 10-candle burner, with like pressure. The said lamps to be lighted and extinguished according to a schedule made to follow the moon as follows." The times for lighting and extinguishing the lamps are mentioned, and the contract continues as follows, viz.: "For which light so furnished the said city is to pay said gas company for each and every light the sum of $1.66% per month, which said sum shall be due and payable at the end of each month respectively." It was also provided in the contract that the city should have the privilege of having the lamps lighted by the gas company at any time not included in the schedule mentioned, and for such extra time the city was to pay the gas company at the end of each month. This contract by its terms was to take effect and be in force from the 19th day of June, 1885, to the 19th day of June, 1886. In May, 1891, the provisional municipality passed the following ordinance, viz.: "An ordinance to effect a settlement of the claims of the Pensacola Gas Company against the city of Pensacola, to establish the price of gas, and to provide for public gas lamps for the period of ten years from January 1st, 1891, and to extend the term of the rights and privileges granted to the Pensacola Gas Company. "Whereas the city of Pensacola is indebted to the Pensacola Gas Company for certain judgments at their face value of $4,414.11, making, with interest to January 1st, 1891, the sum of $6,200.50, and desires to obtain a settlement thereof, and also desires to contract with said Pensacola Gas Company for the lighting of public gas street lamps for a period of ten years from January 1st, 1891, at a less rate than is now paid for street lamps;

"And whereas the Pensacola Gas Company, a corporation organized under the laws of the state of Florida, and invested with the right to furnish gas to the city of Pensacola until November 13th, 1912, is ready and willing to make the settlement in satisfaction of its claim against the said city of Pensacola as recited above, and also to reduce the price of said public gas street lamps in accordance with the terms of this ordinance, and to agree to furnish gas at

the price herein named for a period of ten years from January 1st, 1891, provided the rights and privileges vested in it shall be extended for a period of fifty years from the first day of January, 1891:

"Section 1. Be it ordained by the mayor and city council of the city of Pensacola: That said Pensacola Gas Company may charge a net price for gas to consumers (except for public gas street lamps) of not exceeding at the rate or equivalent of eighttenths of one cent per hour for a fourteencandle power light during a period of ten years from January 1st, 1891, and shall not during said period charge at a higher rate for gas except as provided in section 4, but shall charge this rate on gas not below fourteen-candle power, the quality to be determined by the tester in clerk's office; provided, said gas company will relinquish judgment and discharge said claim for $6,200.50 against said city of Pensacola, and will on accepting this ordinance cause the said judgment to be marked satisfied of record; and provided further, that said gas company shall not during said period of ten years charge said city of Pensacola a higher price than $18.00 per annum for each public gas street lamp of the same efficiency as the present service, including furnishing gas to, lighting, cleaning, extinguishing and repairing. Said lamps to be lighted and kept lit, gas company to be charged pro rata for time the lamps are not lighted, and service to be rendered upon the same terms and conditions in all other respects as set out in a certain contract made between said city and said gas company dated the 15th day of August, 1885, and the lamps to be furnished with burners of the sizes named in said contract. Said city shall pay therefor the price herein named, and shall not during said period of ten years contract with any other person or corporation for gas for street lamps. Payments for street lamp service shall be made to the company by the city monthly. Said lamps to number not less than 160.

"Sec. 2. From and after November 13th, 1912, and until January 1st, 1941, the Pensacola Gas Company shall have and enjoy all the rights and privileges theretofore granted to it by the city of Pensacola, excepting that from and after November 13th, 1912, the rights and privileges of said company shall no longer be exclusive, but such rights and privileges shall be subject to the terms and provisions of all regulating ordinances of the city of Pensacola, to which said company is now subject.

"Sec. 3. Be it further ordained: That within 30 days from the date of the passage of this ordinance said company shall file in the office of the city clerk its written acceptance, under seal, of the terms hereof; and that upon the filing of such acceptance this ordinance and such acceptance shall constitute a contract binding upon the city

of Pensacola and the Pensacola Gas Company.

through certain public street lamps for the use of the public in the city, and although the locations upon which such erections have been ordered are upon streets and places where the needs of the population of the

be located, the gas company has refused, and still refuses, to erect public street lamps in said city unless it pays the cost of erecting such lamps, and the cost of pipes, and other expenses incident to the connection of such lamps with the mains of the company.

"Sec. 5. Nothing in this ordinance contained shall impair, modify or change any rights or privileges heretofore acquired by or granted to said Pensacola Gas Company, except as hereinbefore specifically set out." Within the time allowed, the gas company filed a written acceptance of the terms of the ordinance.

1. The bill alleges (section 1) that the gas company, on the 15th day of August, 1885, entered into a contract with the provisional municipality by which the former agreed to furnish the latter a number of public street gas lamps, not to exceed 137, and to light, extinguish, clean, and keep them in good repair, without charge to the city, and to furnish gas at a price fixed in the agreement, a copy of which is filed with the bill, and being the agreement of August, 1885, above set forth.

2. That said contract expired June 19, 1886, but the gas company continued there after to furnish gas to the city at the rate fixed in the contract, and for such performance erected upon the demand of the city, at points indicated by it, from time to time, a number of public street gas lamps in excess of the 137 fixed in the contract, and maintained, lighted, extinguished, cleaned, and repaired all, without charge to, or demand of payment from, the city.

3. That on the day of May, 1891, the gas company entered into another contract to furnish gas to the city for a period of 10 years, and providing therein for lamps not to number less than 160, and for a service by the company in all respects other than as therein provided, as set out in the contract of August, 1885. The contract of May, 1891, is set out supra.

4. That under the contract of May, 1891, the gas company has from time to time, upon demand of the city, erected at points indicated by it, and without charge or demand of payment, a number of public street gas lamps in excess of 160, and has maintained, lighted, extinguished, cleaned, and repaired the same.

5. That now, although the city has directed the gas company to erect and furnish gas

6. And that the city has refused to pay said sums, and the gas company still persists in its refusal, and said localities are without public street lights, and, under the terms of the contract with the defendant, must remain so for a long period of time.

The special prayer of the bill is that the gas company be decreed to perform its said contract, made in May, 1891, by erecting public street gas lamps at such public places in said city as it may determine to require, without cost or expense in the erection of said lamps, or in connecting them with the mains of the company, and by furnishing gas in accordance with its contract, and that the said company, its officers, agents, and servants, be enjoined from refusing to erect and maintain said lamps, and to furnish gas through them.

A demurrer to this bill, on the ground that it was insufficient in law, in that it does not show that the gas company has failed to comply with the contract attached as Exhibit A, was overruled, and afterwards the city amended its bill by adding another section, numbered 7, and alleging that the gas company was exercising its franchises and privileges within the limits of the city by virtue of an ordinance passed by the city of Pensacola on November 13, 1882, a copy of which is attached as an exhibit. This ordinance is the same as that set out in the first part of this statement.

The gas company answered, and alleged that the facts set forth in the bill do not entitle the city to relief in equity, and advantage of this allegation is claimed, as if demurrer had been interposed. The allegations in the first and third sections of the bill are admitted, and those in the seventh are not denied. As to the allegations in the second section of the bill, it is admitted that, upon the expiration of the contract, (of August 15, 1885,) the gas company continued to furnish gas for the street lamps, and continued to clean, repair, light, and extinguish the same, at the price, and upon the terms and conditions as to service, as set forth in said contract, up to May 7, 1891; but the allegation in this section that the gas company erected, without charge to the city, a number of public street lamps in excess of 137, is denied. It is alleged that the gas company charged the city for the erection of each and every public street gas lamp in excess of 137, and that the city ac

the city acted in accordance with the gas company's understanding of the contractual relations existing between the parties, as set forth in the bill and exhibits. It is denied that the gas company erected, without charge to, or demand of payment from, the city, a number of public street lamps in excess of 160, as alleged in the fourth section of the bill. It is admitted that the gas company did furnish gas, and light, extinguish, and clean, under the terms of the contract made in May, 1891, but it is averred that the gas company charged the city for the erection of each and every public street lamp in excess of 137, and the city acquiesced therein. In answer to the fifth section, it is alleged that the gas company is ready, able, and willing to erect any number of public street gas lamps at such points as may be designated by the city, provided it will pay for the erection of the same; or, if the city will pay the gas company, for gas furnished to the lamps, such reasonable sum as will enable the company to erect such lamps at its own expense. It is also alleged that the gas company, from time to time before the filing of the bill, had rendered to the city accounts for gas furnished, and for public street lamps erected in excess of 137; that the accounts were itemized, showing that the gas company charged for the erection of lamps in excess of 137, and the city never complained of, or objected to, the accounts; also, that the city has from time to time made payments to the gas company in settlement of the indebtedness evidenced by said accounts, and said payments were applied by the gas company to the settlement of said accounts. Further, that the points indicated by the city for the erection of street gas lamps are so situated as to require an extension of the company's mains into localities where it would not have other customers for its gas, and that it would be a continuing loss and hardship upon it, if forced to erect public street lamps as prayed for in the bill; that it was not contemplated, when the gas company contracted with the city, that public street gas lamps should be erected at points where there were no other customers of gas. It is further alleged that the gas company had fully complied with the terms and conditions of the contract of May 7, 1891, but that the city was, at the time of filing the bill, and still is, indebted to the gas company for gas furnished, and that said indebtedness is due and unpaid. It is denied that the localities referred to in the sixth section of the bill must remain for a long period without public street lamps, under the contract as alleged. It is averred that the city has a full and adequate remedy at law. The defendant gas company further alleges that in accepting the ordinance of May, 1891, as a binding contract on both parties, the gas company did not intend to contract for the erection of public street

city, and that the gas company understood said contract was entered into to regulate the price and quality of gas to be furnished the city and the citizens thereof, and for the lighting and service of said street lamps; that the gas company has so construed said contract, and charged the city for the erection of each and every public street lamp in excess of 137, and, so far as the company knows, the city had acquiesced in such con, struction up to the time of filing the bill.

A general replication was filed, testimony taken, and a final decree rendered, requiring the gas company to specifically perform its contract of May 7, 1891, by furnishing and erecting public street gas lamps at such public places in the municipality of Pensacola as it may have designated and required up to the filing of the bill, and without cost or expense to the city in the erection of said lamps, or the connection of them with the gas mains of the gas company, and also by furnishing gas to said lamps in accordance with said contract. The gas company, its officers, agents, and servants, were also enjoined from refusing to erect, at the expense of the company, said lamps, and to furnish them with gas. The gas company has appealed.

Hunt Chipley, for appellant. J. Emmet Wolfe, for appellee.

MABRY, J., (after stating the facts.) The errors assigned on this appeal are the overruling the demurrer to the bill of complaint, and the rendition of the final decree against appellant.

After the demurrer to the bill as originally filed was overruled, complainant amended by adding a paragraph to the bill, alleging that the defendant gas company was exercising its franchises and privileges in the city of Pensacola by virtue of the municipal ordinance passed November 13, 1882; and issue was joined, and the case disposed of, in the circuit court, on the amended bill. The case will be considered here as presented by the amended bill and the issues raised thereon. In the answer to the amended bill, the defendant gas company reserved the benefit of a demurrer thereto, on the ground that the facts alleged did not entitle complainant to any relief in equity.

It is insisted by counsel for appellant that the contract sought to be specifically performed imposes no obligation upon the gas company to furnish gas lamps in excess of 137 at its own expense. The bill alleges that the gas company has refused, and still refuses, to erect public street lamps in said city at points required, unless it pays the gas company the cost of erecting such lamps, and the cost of pipes, and other expenses incident to the connection of such lamps with the mains of the company. In answer to this allegation, the gas company alleges that it is ready,