
    Walters v. Wells.
    Where the plaintiff, claiming under a pre-emption right, prayed that he might be quieted in his title and that the issue of a patent to the defendants might be enjoined, and more than three years had elapsed since his settlement and the date of the pre-emption act, and before the trial but not before the institution of the suit: Held, That in order to entitle the plaintiff to the decree for which lie prayed, he ought to have shown that he had “ covered the land with a valid certificate” within the three years prescribed by the statute.
    Appeal from Smith. The appellee brought suit, claiming a pre-emption right to three hundred and twenty acres of land, under the provisions of the act of the 22d of January. 1845. The petition alleged, in substance, that the plaintiff made a settlement and improvement on the land on the 1st day of February, 1S44, and that lie had it surveyed on Lite 7th day of August, 1843; that the defendants located a certificate thereon so as to include the improvement of the plaintiff; that they claim the laud by virtue of their location, atul unless restrained will proceed to obtain a patent. It prayed that the Commissioner of the General Land Office be enjoined from issuing to the defendants a patent; that the plaintiff be quieted in his right, &c., with the privilege of perfecting liis title agreeably to the requirements of the Jaw.
    The defendants, in their answer, assert an adverse claim by virtue of a certificate for one league and labor of land issued to the defendant, Andrew C. Walters, as assignee of one Newberry, by the, board of hind commissioners of Nacogdoches comity, on the 20th of March, 1S38, and located, so ¡is to include the land in question, on the 4th day of April, 1844.
    Tlte case was tried at the Fall Term, 1S48, and was submitted to the decision of the court, by agreement of parties, on the petition and answer and the following agreed facts, viz, that the plaintiff came to Texas in January. 1844, and settled on the land in February of the same year, and that the defen d-ants were citizens of Texas at the date of the Declaration of Independence. The certificate under which they claim was given in evidence. The court gave judgment, for the plaintiff, perpetually enjoining the defendants from proceeding to survey the land included in the, plaintiff’s survey, and enjoining the Commissioner of the General Land Office from issuing-to them a patent therefor. The defendants appealed.
    
      T. W. Shedd, for appellants.
    
      T. J. Jennings, for appellee.
   Wheeler, J.

The 6th section of the act under which the plaintiff claims (Hart. Dig., art. 2135) authorizes the claimant to have his land surveyed without a certificate; but the 2d section requires of the claimant to have the laud “covered with a valid certificate ” within three years from the passage of the act, or within three years from the commencement of his settlement. (III., art. 2131.) At the time of the trial more than three years had elapsed from the passage of the act and the making of the settlement and survey under which the plaintiff claimed; and there was no evidence that he had appropriated the laud by a certificate, as the law required. It was his right fo be protected in his possession until the expiration of three years, but to entitle him to further protection he must have appropriated the land by a valid certificate. Proof of such appropriation was necessary fo authorize the judgment rendered in this ease; not having been made, the judgment cannot bo sustained.

There was neither averment nor proof that the certificate under which the defendants claimed had been recommended as genuine. It consequently interposed no legal obstacle to the plaintiff’s claim. But to entitle the latter to a judgment awarding a perpetual injunction against the defendants, it devolved on him to show that he had acquired a right to the land by a compliance with the requirements of the law. As the case is presented by the record it does not appear that either party had any right whatever subsisting at the time of the rendition of the judgment.

Tlie judgment is manifestly erroneous and must be reversed; but as the parties may have rights, the case will be remanded to afford them an opportunity so to present them upon the record as that they may be adjudicated.

Reversed and remanded.  