H. D. Patrick v. O. B. Nance, 26 Tex. 298

Wheeler, 0. J. When the plaintiff’s location was made, the land in question was not subject to location; and the plaintiff consequently acquired no right thereto until the issuance of his patent, after the reservation of the land from general location and appropriation had expired, in 1856. The defendant was well entitled to appropriate the land by his certificate and survey in 1852, notwithstanding the plaintiff’s prior location. But the defendant’s field notes were rejected by the District Surveyor on account of the conflict with the plaintiff’s survey. The rejection Was improper.

It Was the duty of the surveyor to receive and record the field notes. But the defendant took no steps to compel the performance of his duty in this regard by the District Surveyor ; and suffered the period prescribed by law for returning his field notes to the General Land Office, (O. & W. Dig., art. 1207,) to elapse without any effort whatever to comply with the law. If the defendant had instituted proceedings within the time allowed by law for the return of the field notes, to compel the surveyor to record them, it might be held, under the authority of Edwards v. James, (13 Tex.

R., 52,) that he was excused from a strict compliance with the law in respect to the time of returning the field notes, by reason of his having done all that it was in his power to do to effect a compliance. But he instituted no Such proceedings, and seems' to have acquiesced in the rejection of Ms field notes by the surveyor until the State had parted with its title by issuing a patent to the plaintiff. Under these circumstances, it must, we think, he held that the failure of the defendant to return his field notes is fatal to his right to the land in question.

Having lost his equity by his neglect to take' the proper-steps to perfect it within the time prescribed by law, he is not in a condition to impeach the patent, by which the right of the State was conveyed to the plaintiff. (Stoddard v. Chambers, 2 How. R., 318.) The copy of the field notes from the General Land Office appears to have been improperly admitted in evidence, because the original, not having been approved or recorded by the principal surveyor, was not properly returned to, and did not become a record of, that office. The judgment is reversed and the cause remanded. Reversed and remanded.