
    Bledsoe v. Cains.
    A voluntary abandonment forfeits all pre-emption privileges, and asale made after such abandonment conveys no right. Hut a temporary absence on business or on a visit to friends or relatives will not constitute an abandonment.
    Theaffidavit required of the pre-emptioneris essential to the validity of his claim,but although it bo not found of record in tho surveyor’s office, yet if the survey has been made and returned by the deputy surveyor and approved by the district surveyor, it will bo presumed that tho affidavit was made unless the contrary be expressly proved.
    Deed or writing is not essential to the transfer of a pre-emption claim; a verbal sale to a purchaser who immediately becomes the occupant is sufficient.
    ■Where an agent acting under authority by parol does an act under seal where no seal is required die seal will not vitiate the act.
    Appeal from Upshur. Matthew Alexander settled, occupied, and caused to be surveyed by a lawful deputy surveyor of the county of his settlement three hundred and twenty acres of the vacant domain of tho State. After having occupied the land for near two years, lie wont with his family to the State of Mississippi on a visit, leaving the place in tlie possession of Joel Alexander, liis son, and halving some, of his property also -on the place. Some few months afterwards, at the-request of liis father, Joel Alexander sold the possession to the defendant, who immediately on making tlie purchase went into possession. A day or two before tlie purchase by Cain and his taking possession Bledsoe, the plaintiff, filed a certilicate and located six hundred acres, including the three hundred and twenty acres' claimed by the pre-emption right of M. Alexander, and had the same surveyed by tho legally authorized surveyor, and instituted suit against tlie defendant Cain to recover the land.
    At the trial tlie plaintifi'objected to tlie admission of tho deed of tlie defendant in evidence on tlie ground that the authority from Matthew Alexander to liis son Joel to make it was not under seal. But tlie objection was overruled. It was proved that when Matthew Alexander settled upon the land, it was included in Harrison land district, and that a new district was afterwards created in which this land is situated; that tlie records of the old district were transcribed and transferred to the new district; and the surveyor of the new district testified that no affidavit appeared of record made by Alexander as a pre-emptioner. Tlie court charged tlie jury that if they found that Alexander had actually settled upon and improved the laud and caused it to be surveyed, and if they found that the survey was made for him as a pre-emptioner, they might presume that he liad taken the oath before the surveyor as required by tlie statute.
    There was a verdict and judgment for the defendant.
    
      J. 0. Everett, for appellant.
    I. It was error to admit in evidence the deed to the defendant. (1 Yerg. It., 2G, 31.)
    Tlie execution of tlie deed not being proved according to law, and the authority to Joel Alexander authorizing him to make tlie deed not being sufficient for that purpose, tlie deed being for tlie conveyance of land and a"sealed instrument, tlie authority to make the deed must be under seal. (See Story oil Contracts, p. 282.)
    II. If a man can hold any pre-emption by an agent, on the same grounds he might hold two or any number, lie might make one improvement under tlie pre-emption law and put an agent in possession of it, and go and make another and put another agent in possession, and go and make a third, and so on.
    III. Tlie affidavit which, under tlie statute, is required to be made by the pre-emptioner and returned with tlie field-notes and recorded in tho surveyor’s office, cannot be presumed any more than tlie execution of a headriglit certificate could be presumed in other cases. It must be produced; and the jury had no right to presume it was made and filed without proof of that fact. (See Hart. Dig., Art. 2135.)
    
      
      M. J. TTall, for appellee.
    I. It is assigned, for error that the court erred in overrulin'; plaiutiii’s objection to the reading of the defendant’s deed of conveyance as evidence. If this were a sale of laud in the true, sense of that expression, and tie1 instrument were intended as a deed, 1 he objection might be tenable, but it o ill be seen that the interest, “onveyed was merely the preemption privilege and the improvements of Matthew Alexander.
    IT. The next assignment is that the judge erred in ins charge to the jury. It will be seen by reference to the statement of facts that when Matthew Alexander settled upon the land in controversy, it was included within the land district of Garrison county, and that a new district was afterwards created, in which hitter i hie land is now situated, and that the records of the old district had to be transcribed and the papers transferred to the new district; and that the surveyor of the new district testilied that no ailidavit appeared of record made by Alexander as a pre-emptioner. Under the circumstances there is certainly more latitude for supposing that the settler took the oath required than in an ordinary case, as iu the uncertainty and confusion attendant on the removal oi records from one county to another, the affidavit may have been lost, and such must have been the conclusion of the jury who returned the verdict.
    On this subject the statute provides (TIart. Dig., art. 2135) that the settler “shall take an oath, which may be administered to him by the surveyor, that “he believes he is settled on vacant land as contemplated in the first section of “this act, upon which the survey, not exceeding three hundred and twenty “acres may be made, and the field-notes shall be returned with the aforesaid “ailidavit of i h" settler to the county surveyor of the county in which the land •‘lies, who shall have the same recorded in said pre-emption book,” &c.
    The terms “oatli” and “affidavit” are both used in the statute, and it may he doubled whether a written oath or ailidavit was intended by the legislature. If a mere verbal or parol oath not reduced to writing was intended by the legislature, then we have no means of establishing that fact oilier than a resort to the survey itself, and that will not establish the fact further than by presumption. But it must be presumed that the surveyor administered the the oath before making the survey, for without it he had no authority to make the survey.
    The. statute was intended to confer a benefit on a certain class of the community who were unable to provide themselves with land certificates, for before its passage tin surveyor was authorized to survey land unless furnished with a valid certificate. The oatli or affidavit of the settler that he was on vacant laud was the authority of the surveyor for surveying, and if he was satisfied to survey the land without a written affidavit, it seems he had the right to do so. The oatli or ailidavit is no part of the title. Its only office seems to he to protect tiie settler until he can have his land surveyed ami covered by a certificate. After that time the oath will bo useless. The Commissioner of the General Land Office could not require any evidence of this oath when called on to patent. Ilem-e the oath or affidavit is no part of the title. But should a written affidavit he essential, will not the presumption be that it was made and that it has been lost? (See Peacock v. Iiammond, (i Tex. It., 542; Hubert v. Bartlett, 9 Tex. It., 97.)
   UiPSCOMB. .1.

The authority of the occupant to soli his improvement seems to be recognized by the article 2133 of the Digest, under the qualification, however, tiiat’tlie purchaser must actually settle upon and occupy the improvements, and “that the purchaser of such improvements shall be subject to the “same conditions, restrictions, and limitations as if the original settler liad “remained in possession.” It seems to have, been the intent of the law that the possession of the. improvement should he actual and continued. And hence it would follow that if there had been a voluntary abandonment of the improvement by the settler ho would forfait all the pre-emptive privileges, and a sale made after such improvement would convey no right of preference to the purchaser. But a temporary absence on business or on a visit to friends and relatives would not constitute an abandonment and forfeiture of the possession. The record shows on the part of the settler a wish to sell his improvement, but discloses no determination to abandon without a sale. Such a presumption is repudiated by all of the evidence. The improvements made were large in proportion to the quantity of land claimed under the pre-emption law, aiid he had purchased it himself at a full if not a high, price, and lie had taken all the sleps required by law to have his right secured. He had caused the land to be. surveyed, and the field-notes to lie returned to the county surveyor and approved by him.

It is, however, alleged that the occupant liad forfeited his preference by not making the .affidavit required by article 2133 of the Digest on applying to the surveyor to survey the land. The law requires that this affidavit sliould he returned by the surveyor with the iield notes of the survey to the county surveyor, and that he sluill have the same recorded in the pre-emption book required by law to he kept by him.. The record does not show that the affidavit was proven to have been made or returned. It shows that a survey was made purporting to have been on the occupant’s claim for a pre-emption; that this survey was properly verified by the surveyor and returned to the office of the ■county surveyor and by him approved. The object of the affidavit was to give authority to the surveyor to survey a claim of this sort, because by the general law lie was forbidden to survey without a land certificate or warrant being filed with him; and it was an authority and protection to him. But we are not prepared to say that sliould lie neglect to return this affidavit to the county surveyor when lie returns his field-notes of the survey the occupant would forfeit his rights by such neglect. That the affidavit was a necessary predicate of the survey is clear, and if the fact of such affidavit not having been made was established it would destroy the validity of tlio survey; but we must presume, unless the presumption is negatived, that it was made; because without it the surveyor had no right to make the survey, and the county surveyor could not and would not have sanctioned the survey; and as the surveyor in verifying his survey alleges that it was made on the pre-emption claim of the occupant., we must presume that the application for the survey was supported by the ailidavit. The division of the county, and c'onsequently a division of the land district and the records of the surveyor’s office, may, too, account for the omission to show that the affidavit had been filed.

There is believed to be nothing in the error assigned, that the authority of Joel Alexander to make the sale for his father was not sufficiently authenticated, as neither the pre-emptionlaw nor the dignity of the right to be conveyed required that it should be by deed. It was only the occupant’s claim to (he improvement ; and a verbal sale to a purchaser who immediately becomes the actual occupant of the improvement was sufficient.

The appellant’s counsel did not seem to-rely upon this last assignment, as he suggested (and correctly too) that the main gr.ound was1 the abandonment of the improvements before the sale was made, which lias been already discussed.

We believe there is no error in the judgment of the court and it is affirmed.

Judgment affirmed.  