Theodore Kohlhass v. Charles Linney, 26 Tex. 332

Wheeler, 0. J. It appears by the record, that the plaintiff, Linney, had settled upon and improved the land in question; that it was vacant land; that he made the oath required by law to entitle him to have the land surveyed, and to claim it as a preemption ; and that he procured it to be surveyed as his pre-emption claim, within less than twelve months from the date of his settlement, and some time before the procurement of the field-notes by the defendant, and the application to them of the defendant’s certificate.

The plaintiff appears to have done all that was necessary to entitle him to claim the land as a pre-emption according to the statute and the decisions of this court, before the attempted appropriation of it by the defendant. (Hart. Dig., art. 2130, 2135; Cravens v. Booth, 17 Tex. R., 268; Jennings V. De Cordova, 20, Tex. R., 508.) He had three years from the commencement of his settlement within which to apply to the survey a certificate; (Hart. Dig., art. 2131;) which hud not elapsed when the defendant, through his agent, procured from the surveyor the field notes and prevented him from perfecting his right.

There does not appear to have been any laches on the part of the plaintiff. His failure to perfect his claim into a perfect title is attributable, in so far as we can judge from what appears by the record, to the wrongful appropriation of his field notes by the defendant. The jury appear to have been well warranted by the evidence in finding for the plaintiff upon the question of fact submitted for their decision.

The court rightly ruled that the defendant could acquire no right to the land, as against the plaintiff, by the fraudulent procurement and appropriation of the field notes of the survey made for the latter. His patent obtained by such means gave him. no title as against the plaintiff's prior equity. It was not. necessary, to enable the plaintiff to claim the land as a pre-emption, that he should have the land surveyed within eight months from the commencement of his- settlement. (Jennings v. De Cordova, 20 Tex.

R., 508.) It is sufficient for his purpose that it was surveyed before any steps had been taken by the defendant to appropriate the land. If, after the expiration of eight months from his settlement, and before his survey, the defendant had located his certificate upon .the land, the plaintiff's claim might have been thereby defeated. But, as we have seen, he had the land surveyed before the defendant made any attempt to locate the land or appropriate the survey. We are of opinion that there is no error in the judgment, and it is affirmed.' Judgment affirmed.