
    P. H. Clark v. Eli Smith.
    (Case No. 4244.)
    1. Limitation — Pre-emption.— Neither the three or five years’statute of limitations can avail a pre-emption claimant whose pre-emption claim is of land already held by a private individual under patent, or location and survey, which would entitle him to a patent; following Sutton v. Carabajal, 26 Tex., 500, and Buford v. Bostwick, 58 Tex., 63,
    2. Unconditional headright certificate.— An unconditional headright certificate for six hundred and forty acres of land was filed in the office of a district surveyor May 12, 1858; located July 5, 1858; the field notes of its survey recorded in the proper surveyor’s office July 5, 1858; filed in the general land office August 12, 1858, and patent issued thereon June 18, 1874. There was no evidence that the conditional certificate was in the general land office, but the unconditional certificate showed by its recitals that.it was issued by the board of land commissioners «pon sufficient proof. There was no action of the commissioner of claims approving or disapproving the unconditional certificate. Held,
    
    (1) Though the conditional certificate was not in the general land office when patent issued, yet, after so great a lapse of time, it will be conclusively presumed
    
      that the “ sufficient proof ” referred to in the body of the unconditional certificate was made; that it was such as was required by art. 4310, Pasch. Dig., and that it dispensed, under the circumstances, with further proof that the unconditional certificate was actually in the general land office; following Hanrick v. Jackson, 55 Tex., 32; Gullett v. O’Connor, 54 Tex., 416; Todd v. Fisher & Miller, 26 Tex., 240, and other cases.
    (2) Even if this was not sufficient to establish the legality of the certificate, it was rendered good by section 1 of the act of December 15, 1859, providing for the issuance of patents.
    (3) This case distinguished from Durrett v. Crosby, 28 Tex., 688.
    3. Pbe-emftoe — Bents. — Land held by virtue of the location ¿Énd survey of such a certificate was settled on and improved by one who attempted to establish thereon his pre-emption. In a suit against him by one having title under the certificate, held,
    
    (1) That to defeat plaintiff’s claim for rent it was not only necessary to show that defendant had paid all taxes due, but it must also be shown affirmatively by proof that the plaintiff had failed to pay the taxes; citing Pope v. Davenport, 52 Tex., 221, and Miller v. Brownson, 50 Tex., 597.
    Appeal from Tarrant. Tried below before the Hon. A. J. Hood.
    Trespass to try title, and for rents and profits, brought by appellee’s intestate, July 25, 1877, for the W. L. Mann six hundred and forty acre headright survey. Appellant answered, disclaiming all title and possession of Mann’s survey, except one hundred and sixty acres known as the P. H. Clark pre-emption survey, and set up a claim by virtue of his settlement thereon and pre-emption thereof as required by law in January, 1871, claiming that he had continuous possession from that time, as a homestead, and had fulfilled all the requirements of the law to entitle him to a patent. He also pleaded the general issue and general denial, and prayed for the removal of cloud from title.
    Plaintiff Smith died; Stephen Terry, as administrator of the estate, was made party plaintiff.
    Appellant filed his fourth amended original answer, revoking his former disclaimer, so far as respects that portion of the W. L. Mann survey covered by the Hedley Smith pre-emption survey of one hundred and sixty acres, and set up title in himself thereto by deed of conveyance from Smith and wife, of date 29th of June, 1878, claiming that Smith had legally pre-empted the same as a homestead on 1st September, 1871, and had fulfilled all requirements of the law to entitle him to a patent thereto; disclaiming all title and possession to said W. L. Mann’s survey except Clark and Smith’s pre-emption surveys thereon. In the last amended original answer he pleaded the same issues as in his former answers, and the statute of limitations of three and five years; set up various causes of nullity to plaintiff’s intestate’s title, and suggested improvements in good faith.
    
      The objections urged in the answer to plaintiff’s title were as follows:
    1. Because the conditional certificate Ho. 165, on which the unconditional certificate Mo. 8 was issued, was never recommended as valid by any board of land commissioners.
    2. Because the conditional certificate Ho. 165 was never sent up to or filed in the general land office, nor was any affidavit sent up to or filed in that office showing why the conditional certificate was not sent up to or filed in that office.
    3. Because the names of the witnesses by whom proof (if any) was made by W. L. Mann as to his residence, citizenship, etc., as required by law, were not sent up with the report of the commissioners who pretended to issue the unconditional certificate Ho. 8 to W. L. Mann, nor at any other time, nor did the report of the clerk of the board of land commissioners of Tyler county, when the certificate Ho. 8 purported to have been issued, state any time when W. L. Mann emigrated to Texas.
    4. Because the unconditional certificate issued to W. L. Mann was not presented to the commissioner of claims (or to any other officer authorized to approve it) for registry and approval prior to Septem- . her 1, 1858, nor was it approved at any time prior to the issuing of patent.
    5. Because, when the unconditional certificate issued to Mann was presented to the commissioner of claims for registry and approval on the 1st of February, 1859, it was not approved by the commissioner, but was by him suspended.
    6. Because the unconditional certificate was never filed in the office of the surveyor of Tarrant county, nor was it ever filed in the general land office of the state of Texas, as required by law.
    7. Because the unconditional certificate was withdrawn from the general land office, if ever properly filed there, on the 1st day of February, 1859, and was not withdrawn or refiled in that office until June 18, 1874.
    Waiving a jury the parties went to trial. Judgment by the court for appellee as administrator against appellant, for all the land, balancing rents against improvements.
    The W. 1. Mann unconditional headright certificate Ho. 8, for six hundred and forty acres of land, was located on lands here in controversy July 5, 1858, was filed in the office of the surveyor of the Denton land district May 12, 1858, and in the general land office at Austin August 12, 1858. The field notes of said survey lying in Tarrant county, Texas, were recorded in the office of the surveyor of the Denton land district July 5, 1858, in location book IT, page 214, and sent up to and filed in the general land office at Austin January 19, 1859. There was no proof that the certificate was ever out of the general land office after the date of its filing therein, except the indorsement on its face made by Edward Clark, commissioner of claims. Patent was issued on the W. L. Mann survey to George W. Harnage, assignee of Mann, on the 18th of June, 1874. Plaintiff introduced in evidence a regular chain of title by descent and by mesne conveyances from Harnage to his intestate. Clark entered as pre-emptor on the 1st day of January, 1871, and Hedley Smith entered as pre-emptor the 1st of September, 1871. Each of them made their pre-emption affidavit and designation, had the lands surveyed and field notes recorded in the office of county surveyor, and sent up to and filed in the general land office, with preemption affidavit, as the law required. Each paid office fees, resided on the land for three years, made final proof, tendered fees and demanded patent. Ho patent issued because their surveys were in conflict with the W. L. Mann survey,
    
      J. W. Thompson, B. C. Barclay and Oliver S. Kennedy, for appellant,
    cited,. on limitation, Pasch. Dig., secs. 4622, 5303; Buford v. Gray, 51 Tex., 335; Spier v. Laman, 27 Tex., 216; Erhard v. Hearne, 47 Tex., 479; Galan v. Goliad, 32 Tex., 788; Pearson v. Burditt, 26 Tex., 172; Smith v. Power, 23 Tex., 39; Marsh v. Weir, 21 Tex., 109.
    On the right to pre-empt, Spier v. Laman, 27 Tex., 215; Craven v. Brooke, 17. Tex., 268.
    On the right to allowance for improvements, Pasch. Dig., sec. 5306.
    On the invalidity of the certificate, Pasch. Dig., secs. 4178-4309; Commissioner v. Riley, 3 Tex., 239; Peck v. Moody, 23 Tex., 93; Hamilton v. Avery, 20 Tex., 612; Foster v. Wells, 4 Tex., 103; House v. Talbot, 51 Tex.. 462; Barrett v. Kelley, 31 Tex., 480; Glasscock v. Nelson, 26 Tex., 152; Brown v. Guthrie, 27 Tex., 611; Smith v. Hampton, 13 Tex., 462; Dikes v. Miller, 24 Tex., 424; Story’s Eq., secs. 64a, 529, 1520, and note.
    
      Hanna & Hogsett, for appellee,
    cited Pasch. Dig., art. 4622; Sutton v. Carabajal, 26 Tex., 499; Marsh v. Weir, 21 Tex., 109; Williamson v. Simpson, 16 Tex., 444; Smith v. Power, 28 Tex., 29; Kilpatrick v. Sisneros, 23 Tex., 135.
    On pre-emption claim, Pasch. Dig., arts. 4623, 4977; Wofford v. 
      McKinna, 23 Tex., 42-46; Cravens v. Brooke, 17 Tex., 274; Jennings v. De Cordova, 20 Tex., 513; Spier v. Laman, 27 Tex., 215.
    In support of title, Pasch. Dig., arts. 1111, 1112, 1148, 4287; Peck v. Moody, 23 Tex., 93; Pope v. Davenport, 52 Tex., 221.
   West, Associate Justice.—

The appellant, under the previous decisions of this court, could not, under his pre-emption claim, avail himself of the three years or five years’ statute of limitation. "No right of pre-emption could be acquired in land already held by a private individual under a patent, or a location and survey upon which he was by law entitled to a patent. Such pre-emption right can only attach to an actual occupation, in accordance with the provisions of law, of vacant land belonging to the state, and" subject to pre-emption. Sutton v. Carabajal, 26 Tex., 500; Buford v. Bostwick, 58 Tex., 63.

The previous location and survey made by virtue of the W. L. Mann certificate was legal and proper. The certificate ivas in the surveyor’s hands when the location and survey was made, and was duly returned to the land office, and there remained, except during the short period of time in which it was, no doubt, by the authority and under the direction of the commissioner of the general land office, filed in the office of the commissioner of claims, for examination and approval.

We do not think any of the many objections to the validity of the original certificate issued to Mann, or to the survey or patent issued by virtue of it, are well taken.

Though the conditional certificate was not in the general land office (1 vol. Pasch. Dig., art. 4309), yet the recitals in the body of the unconditional certificate show that it was really issued by the board of land commissioners on sufficient proof. This proof, after such a lapse of time, we must conclusively presume was that of the two credible witnesses required by law, and complied sufficiently with the provisions of art. 4310, vol. 1, Pasch. Dig., p. 717, and dispensed, under the circumstances, with the necessity of the further proof that the conditional certificate was actually in the general land office. These views are well sustained by authority. Hanrick v. Jackson, 55 Tex., 32; Gullett v. O’Connor, 54 Tex., 416; Johnson v. Eldridge, 49 Tex., 507; O’Neal v. Manning, 48 Tex., 407; Todd v. Fisher & Miller, 26 Tex., 240.

Were this not sufficient (as we feel sure that it is) to establish the genuineness and legality of the certificate in question, we are of opinion that it is rendered good by the first section of the act of December 15, 1859, providing for the issuance of patents on all genuine headright certificates not previously presented to the commissioner of claims for approval. 1 vol. Pasch. Dig., art. 1148.

It is true that the record shows that this headright claim was presented to the commissioner of claims for approval, but as he neither approved or disapproved of it, by this act it was placed practically on the same footing as other genuine headright claims that had not been passed on by him. This presents an entirely different case from that of Durrett v. Crosby, 28 Tex., 688. In that case the certificate had been disapproved by the commissioner of claims, and the petition prayed for a writ of mandamus against the general land office.

The law provides that all genuine headright certificates, like the one under consideration, that have been legally issued and propérly reported to the proper officers, shall be recognized, and patents be issued on them. In this case the patent was lawfully issued, and vested the fee to the land in suit in the patentee, under whom the appellee holds.

The district court also decided that the use and occupation of the land was equal in value to the improvements, and therefore allowed appellant nothing for them. To this decision he objects, because it was proved that appellant paid all the taxes due on the land in suit, regularly, and there was no proof made by appellee that he paid any taxes.

On this subject this court has held that, in order to defeat the plaintiff’s claim for rent by proof of the plaintiff’s failure to pay taxes, the defendant must not only show that he has actually paid all taxes, but also show affirmatively by proof that the plaintiff has failed to pay them.

The mere absence from the record of all evidence whatever on the question as to whether the appellee paid the taxes on the land in question, or not, does not afford the slightest presumption in law that he has not in fact paid all the taxes regularly. Pope v. Davenport, 52 Tex., 221; Miller v. Brownson, 50 Tex., 597.

There is no error in the judgment, and it is affirmed.

Affirmed.

[Opinion delivered April 20, 1883.]  