
    Watkins v. Kirchain.
    where the answer to a petition for a mandamus discloses sufficient matter of record in the-office of the officer who is called upon to show cause why a mandamus should not issue to-justify him in his refusalto act, it is not necessary for the answer to be sworn to; it might be otherwise if it set up matter in pais.
    
    It is a sufficient answer to a rule against a surveyor to show cause why ho refuses to make a. survey on the application of one claiming the privileges of the pre-emption law that tho-land had previously been surveyed under a certificate, &«., or was covered by an origimif title. On contestation of tho return, or allegation that the prior appropriation was invalid*, the parties interested adversely may be made parties, after which the right may bo tried. (Note 73.)
    Error from Ancleraon. Tlio petition in tills case set out that tlio petitioner verily believed that the land upon which he liad settled and resided was vacant land, and that to claim the benefit of the pre-emption law, and have three hundred and twenty acres, including his improvement-, surveyed, lie made application to tiie defendant, surveyor for the comity of Anderson, in which district the land was situated, and made the oatii prescribed by the statute, but that the said surveyor, although particularly requested to make the survey, wholly neglected and refused to do so. Petitioner prayed that the said defendant, Kirchain, be cited to show cause, if any he could, why a peremptory mandamus’ should not be granted requiring him to make tlio survey as required by petitioner, and that he be adjudged to pay costs, &c., &c.
    The defendant appeared and answered, in substance, that he refused to survey the land described in tlio plaintiff’s petition because the records and maps of the said surveyor’s office showed that some time in the year 1834 or 1S35 the said land had been surveyed for and granted to Jnan Durst, as agent or purchaser of J. V. Mora, by the government of the State of Coaluiila and Texas that the residence of the said Mora or liis heirs was unknown ; that the said Durst died about eighteen months since, in the county ofLeon, in which county his heirs and legal representatives ‘-now reside; ” that the said grant was of record in the office of the clerk of the County Court of Houston county and that from subsequent conveyances, also of record in said county before the county was separated from Houston county, it appeared that one James Bradshaw was a claimant of said land under the said original grant; that said Bradshaw died some years since, in the county of Nacogdoches; and that letters of administration upon his estate, by the Probate Court of said comity, were granted to William Bradshaw, who was a resident citizen of said county of Anderson ; but that the residence of the heirs of the said James Bradshaw was unknown to defendants; that he knew nothing of the validity or invalidity of said grant. He asked that the plaintiff be required to make parties of those interested under the grant to this suit.
    The plaintiff, among other exceptions, excepted to the sufficiency of the answer, upon the ground that it was not sworn to by the defendant. The court overruled the exceptions, and ruled that the plaintiff should call in the parties interested hr the land, under the grant referred to in the answer, as parlies in the suit.
    The plaintiff declining to comply with the order, the suit was dismissed at his costs. The plaintiff sued out a writ of error, and assigned several grounds of error, two only of which were considered: first, the supposed error of the court iu overruling tho exception to the answer, and secondly, in requiring' other parties to be made.
    
      N. If. JBurford, for plaintiff in error. .
    I. The first assignment of error relied . upon is that the court erred in not striking out tile answer because tho same was not sworn to. This ruling was clearly erroneous. And the common-law writers say that both the application for and return to a mandamus must be-sworn to. (3 Black, 111; 4 Bacon Abr., 518.) And this court has said that, both the application and answer ought to be verified. (See 3 Tex. It., 92.)
    
      II. The next point relied upon is that tlie court crretUn dismissing- the suit ‘because the plaintiff would not make other and additional parties. This ruling- might have been correct had tlie pleadings disclosed the fact that •the interest of persons not before the court were involved in the suit, but such -■a position is not sustained by the record. There is nothing either in the petition or answer that discloses the iuterest of any third party likely to be jeopardized or in anywise affected by the judgment of the court in the cause then pending.
    III. Another point relied upon is the insufficiency of the answer or return. For the plaintiff it is contended that the answer gives no legal excuse for the refusal to make the survey. It was incumbent upon the plaintiff to swear that lie had settled upon wliat he believed to be vacant land. The law required ¡this oath to be administered by the surveyor, upon the administering- of which the surveyor was required to survey for the applicant three hundred and twenty acres, to include his improvement. (Hart. Dig., arts. 21, 35.) The requirements exacted of the applicant for pre-emption privileges and the duties •of the surveyor are both clearly defined by law. The surveyor has no discretion left him. His is but a ministerial act. The kind and quantity of proof upon which lie is to act is prescribed by law. This he cannot enlarge nor diminish. As well might a justice of tlie peace refuse to issue an attachment because ho disbelieved tlie affidavit of the party seeking- it. Clearly tlie surveyor could not look beyond the affidavit of tlie party claiming tlie pre-emption privileges.
    
      G. JF. Moore, for defendant in error.
    I. The first error urged is that the answer of the defendant was not sworn to. The authorities referred to by the plaintiff do not sustain the exception. They only show that the petition for a mandamus should he sworn to, hut do not discuss the qucsfcionas to the return. The defendant, being a public officer, liis return to the application for a mandamus is sufficiently verified by his official character and oath.
    II. Tlie answer is sufficiently certain, (4 Bacon Abr., 518,) and it assuredly discloses an adverse interest in tlie parties named. It shows more than tlie records of his office, which would have been sufficient. We doubt whether tiie defendant is a necessary or proper party to the litigation of the matters involved in this suit; but it cannot be questioned that after it was shown that there were others whose, rights might be affected by it, the suit could not he continued without making- them parties to it. (Smith v. Power, 2 Tex. K„ 57.)
    The main point urged in the court below is tlie last error presented in the plaintiff’s brief. It was not questioned but that under tlie statutes and instructions of tlie Commissioner of the Geueral "Laud Office a surveyor is not authorized to survey for tlie holder of a headlight certificate, bounty warrant, &c., lands that are shown by tlie records and maps of his office not to be vacant; hut it was contended that the pre-emption act makes the ease at bar au exception to tlie rule. The first section of the act granting pre-emption privileges (Hart. Dig., art. 2130) grants this privilege to persons who settle upon and improve a portion of the vacant public domain. Can it be supposed that the •conscience of tlie applicant, rather than tlie records of his office, should furnish tiie guide to tlie surveyor in tlie discharge of the duties of his office? Until tlie passage of this act the surveyor could not separate a part of the public domain for individuals except upon the delivery to him of a certificate, warrant, &c.. The affidavit which the applicant was required to make (I-Iart. Dig., art. 2135) was not intended to prescribe a different rule in these from, •other cases to enable the surveyor to determine whether tlie land was a part of the vacant public domain, but to furnish tiie authority to him in place of a •certificate, &e., to separate the laud sought from the remainder of the unappropriated domain, and to establish tlie fact of a settlement and improvement of the land asked to be surveyed, and to protect tlie State against the fraudulent appropriation of the public domain under color of this law. The construetion contended for by the plaintiff would place a citizen who had settled and improved land and presented himself to the surveyor witii his ccrlilieate in a worse situation than one who asked for the survey of land without, certificate or warrant, &o. The same embarrassment wouid arise when the settler soutgli to apply a certificate to tiie field notes before recorded, or, if the surveyor would still he bound by the affidavit of the settler to make the application, notwithstanding the records of his office showed that he had previously surveyed the laud for another party under a certificate, warrant, &c., the. Commissioner of (lie General Laud Office could not issue a title, though the return of such conflicting field notes and surveys wouid greatly embarrass him in the proper discharge of the duties of his office.
   Lipscomb,,!.

The answer of the surveyor does not appear to have been verified by affidavit; and it is said in Bracken v. Wells and others, that although our statute docs not, in exceptions, require the application for a mandamus to be verified by oath, yet, on general principles, they ought to he so verified. (3 Tex. R., 92.) But we are not aware that it has ever been decided by tills court that the answer must be sworn to. Formerly, by the common law, the answer to a rule for a mandamus could not lie controverted; its verity could not he questioned in that suit. (Fitzhugh v. Custer, 4 Tex. R., 393. AVlien the common-law rule prevailed it would seem that the answer ought to he verified by oath. But the common-law rule lias not been introduced into onr practice, (see case last cited,) and with us there cannot lie the same necessity for verifying it by oath, because its truth is subject to lie. controverted in the same action. But if it were admitted that as a general rule the answer ought to be sworn to, yet it might well allow of exceptions where the answer, as in this case, refers to sufficient matter of record in the office of the officer who is called upon to show cause, why a mandamus should not issue to justify him in his refusal; and to show good grounds why it ought not to issue, it is believed that an affidavit would not be absolutely essential to its verity. It might be otherwise if it sot np matter in pais as an excuse for not doing wliat lie had been asked to do by the petitioner.

The next ground questions the sufficieiiey of the answer as to the matter therein contained affording a defense. The plaintiff in error contends that when the surveyor was called upon to make the survey by a person wishing to avail himself of the pre-emption law. all that he had a right to require of the applicant was that lie should make the affidavit specified in the statute, and that the affidavit, when made, is conclusive on the surveyor as to the land required to be surveyed being vacant and a part of the public domain. Article 2130, I-Iart. Dig-., provides, ‘‘That ail individuals,who have settled upon and “improved, or may hereafter settle upon and improve, a portion of the vacant “public domain, which lias been neither filed upon, entered, located, nor “surveyed, by virtue of some genuine, legal, and valid certificate, or other “ evidence of title to land, previous to such settlement and improvement, shall “liave the privilege of locating- and surveying a tract of land, not exceed- “ iug three hundred and twenty acres, so as to include said settlement and “improvement, in preference to all other claims or claimants.” And in article 2135, among other tilings, it is provided, “And on application being “ made by sncli settler to a surveyor to have his land surveyed to include his “improvements, lie shall not be compelled to furnish the surveyor with any “land certificate, but lie shall take an oath, which maybe administered to “him by said surveyor, that lie believes lie is settled upon vacant land, as “contemplated in the first section of this act, upon which the snrvey, not “ exceeding three hundred and twenty acres, may be made, and the field-notes “shall he returned, with the aforesaid affidavit of the settlor, to tile comity “surveyor of the eountv in which the land lies,” &c. It is very clear that the law above cited did not extend its privileges to a settler upon any but the vacant public domain which hart not been filed upon, entered, located, nor surveyed by virtue of some genuine, legal, and valid certificate, or other evidence of title to land previous to such settlement. The records of the surveyor's ohico showed- that the land iu question was not iu a condition to be settled upon and surveyed for a claimant of a pre-emption. They showed that it liad been surveyed under a grant from the tí tato of Coalmila and Texas, and fie w;;l’ierefore, fully justified in refusing'to survey it, because it had been surveyed uml -r a claim of title 1o the. land. This title may not be valid, but' xc is presumed to be so, and is not subject to be claimed under the pre-emption law until a competent tribunal had adjudged tho grant and survey void. It was not im.-nded that the question of tho validity of the grant should be determined l>> the affidavit of tho, applicant for the privileges of the pre-emption. And ¡he affidavit was not- designed to supply evidence that the land was subject to claimed as vacant, bnt'it was designed lo supply tlio place of a cenii-icalo required in other cases. Had tho answer stopped with wlmt was apparent from ¡he records and papers of his office, showing that the land had been previously surveyed under a grant to Val Mora, it would have been sufficient lo have prevented the issuance of the peremptory mandamus. Oil tho plaintirCs contesting tiie return, and alleging that the grant was invalid, and that tiie land was really vacant, the cause would have been continued, and that issue could have been tried, but, not until tiie parties interested adversely bad been cited and made parties. If tho plaintiff would not aslc to have such parties mode, or refused to have them made, when it was ruled that they were necessary to any judicial action oil their rights, tiie court was right in dismissing the petition. That all the parties in interest should be made parties in a proceeding by mandamus lias been settled by this court iu tiie ease of Smith v. Power. 2 Tex. R., 68; Commissioner General Laud Office v. Smith, 5 Tex. R., 471; Bracken v. Wells, 3 Tex. R., 88. Wo believe, therefore, that there is no error in the judgment of the court below and it is affirmed.

Judgment affirmed.

Note 73. — Tabor v. Commissioner, 29 T., 508.  