after stating the case as above, delivered the opinion of the court.

Without examining the ground on which the circuit court proceeded, we are of opinion that the bill was rightly dismissed. The land in question was the property of the state of Texas. The plaintiff proposed to buy it. His application was accepted, and he made a small payment on the purchase money. He never obtained any patent or other conveyance of title. Subsequently the commissioner of the general land office of Texas “attempted to cancel” the contract with plaintiff, and “attempted to award and did award and attempt to sell” the same land to one Lacour. Lacour has conveyed his “pretended right” or claim to the defendants. The plaintiff, having stated these facts in his bill, prays that the defendants may be required to produce such writings, or certified copies thereof, from lawful custodian thereof, or such originals on which they base their title or claim to said land, and that the same be canceled, and that he (plaintiff) be adjudged the owner of said land, and for a writ of possession. It does not appear from the bill that the plaintiff is now, or ever was, in possession of the land; nor is it shown that the defendant is in possession, or ever was in possession, of the land. There is a prayer for a writ of possession, but it does not appear who is to be ousted from possession. No one is shown to be in actual possession. There is nothing alleged to prevent the plaintiff from taking actual possession as against the defendants. The legal title to the land appears from the bill to be in the state of Texas, but we are not advised by the bill as to any actual possession, *345past or present. On these averments, the question arises, what is the court asked to do that it can do ? It is asked for a writ of possession, but, conceding that such writ may issue in a case where equity has jurisdiction, it is not shown that any one of the defendants is holding possession. It is not shown that any one is holding possession against the plaintiff. The plaintiff prays the court to adjudge him “the owner of said land,” but the bill does not show the plaintiff to be the owner in the sense of having the legal title, nor that he has a complete equity, in the sense that he has paid the whole of the purchase money. We cannot hold the bill to be one for specific performance, because, whatever rights the plaintiff may have, on the averments of the bill, against the state of Texas, he shows no right to specific performance of any contract with the defendants. No contract of plaintiff with them is alleged. If an owner of land make a valid contract to convey it to one purchaser, and subsequently another contract to convey to another purchaser, the first purchaser may maintain a bill for specific performance against the owner, making the second purchaser also a defendant; and he may obtain not only a specific performance of the first contract of sale, but a cancellation of the second contract of sale. But we have no such case here.

Unless the bill can be sustained as one to remove cloud from the plaintiff’s title, it certainly has no equity. Looking at it as a bill to remove cloud from the title, the prayer is that the defendants be required to produce -their title or claim, that the same may be canceled. The only paper they are shown to have is the conveyance or transfer from Lacour. If that paper were produced and canceled, what good would it do the plaintiff ? It would give him neither possession nor title. It would not change his contractual relations with the Texas land commissioner. The decree would be ineffectual. If it prevented Lacour’s vendees from completing their purchase of the land by making the deferred payments, it would not secure the land for the plaintiff, nor in any way enforce his alleged agreement with the Texas land commissioner. It would not revive his contract, if legally canceled; nor wopld it settle its validity before cancellation, as against the land commissioner. The plaintiff seems to appreciate this "difficulty, and, to avoid it, he alleges that the commissioner of the general land office has “signified his willingness to reinstate your orator as a lawful purchaser of said land, should the said cloud from his title thereto be removed by a decree of some court of competent jurisdiction in a' suit against the de' ' ^ns nereto.” The effect of the decree that the court would render would depend on the willingness or unwillingness of the land commissioner to reinstate the plaintiff as purchaser. If he did not consent to abide by the decree, it would not bind him. It is clear that, if the plaintiff cannot enforce the specific performance of his original contract against the commissioner (a question not before this court), he could not enforce the commissioner’s agreement about the effect that he would be willing to give the decree. Under the jurisdiction and practice in equity, independently of statute, a bill to remove cloud on title, which avers no facts conferring the right to other equitable relief, must show that the plaintiff has the legal title to the land, and that he is in possession. The bill “cannot be maintained without clear *346proof of both possession and legal title in the plaintiff.” If plaintiff’s title is legal, and he is out of possession, his remedy is at law, by ejectment. If his title is equitable, and not such title as will support ejectment, he must acquire the legal title and bring ejectment. Frost v. Spitley, 121 U. S. 552, 556, 7 Sup. Ct. 1129, 30 L. Ed. 1010; U. S. v. Wilson, 118 U. S. 86, 89, 6 Sup. Ct. 991, 30 L. Ed. 110; Herrington v. Williams, 31 Tex. 448, 460; Chinn v. Taylor, 64 Tex. 385, 390.

The decree of the circuit court will be amended so as to make the dismissal of the plaintiff’s bill without prejudice, and, as so amended, it is affirmed.