
    Henry Mays v. William C. Beatty.
    Real Estate — Possession Under Preemption Claim — Bill of Exceptions.
    While it may be true that the occupant of real estate under preemption entry has no such title that he may transfer the same by sale, he can legally pass his possession to another.
    
      Bill of Exceptions.
    Where there are numerous blanks In a bill of exceptions, the court of appeals cannot determine which instructions were given or which refused.
    APPEAL FROM ADAIR CIRCUIT COURT.
    September 12, 1874.
    
      Garnett & Stuart, for appellant.
    
    
      A. J. James, for appellee.
    
   Opinion by

Judge Lindsay:

It is stated in the caveat that Beatty was in the actual possession of the two tracts of land, at the time appellant caused the-same to be surveyed, and that he was claiming a pre-emption right to each of them, the fifty-acre tract by virtue of his own actual occupancy, and the one-hundred-acre tract by virtue of his purchase from Hicks. It is true Hicks had not procured a plat and certificate of survey; but it is averred that he actually appropriated the land, and that he turned his possession over to Beatty’s tenant. It is further averred that appellant obtained the possession by buying out such tenant.

It may be true that until a plat and certificate of survey have been procured, the occupant has no such title as he can transfer by bargain and sale; but he can certainly pass his possession to another, who will have the right to convert the amount under which the occupant claims, into a patent, by making the entry, and by procuring plat and certificate of survey. It is further alleged that appellant had notice of all these facts; and that he fraudulently attempted to procure title to the land, by means of his warrant, entry and survey.

Upon the trial of the action evidence was introduced by both parties. The bill of exceptions fails to show that it contains all the testimony. There are numerous blanks, intended to have been filled by the insertion of exhibits and depositions, but which have never been filled. We have no means of ascertaining which instructions were given or refused. There are blanks in the bill of exceptions that were intended to be filled by the insertion of certain instructions given, and others asked for and refused, but they were never inserted. Following the bill of exceptions are certain papers, purporting on their face to be exhibits, depositions and instructions, but we cannot determine from anything before us that they constitute any part of this record.

Under such circumstances this court cannot consider these papers. We must, therefore, affirm the judgment of the circuit court.  