Sam Houston, President, etc., Appellant, vs. The Administrator of S. C. Robertson, Appellee, 3 Tex. 374

Mr. Chief Justice-HeMphill delivered the opinion of the court. We are of opinion that the court erred in requiring or permitting the appellee so to amend his designations as not to include the league and twenty-two labors on Elm creek and north of Little river, a part of a four league survey, and designated in the original report or selection of appellee as No. 6. This decision of the court was placed upon the ground that the party could not select a portion of the four leagues, but must take all or none.

This is, we think, wrong, and the decree should be reformed in this particular, if there be no other objection to the designation than the one referred to in the decree. We are also of opinion that the court erred in not requiring the appellee to produce some evidence, which would show, pri-ma facie, that the portion of the premium leagues, pretermit-ted in his selections, had not been sold, alienated, or otherwise disposed of by the deceased in his lifetime, or by the appellee since liis death.

The mandate evidently intends, as far as possible, consistently with equitable principles, that the appellee shall be limited to the first fifteen leagues and twenty-three labors, in the consecutive order of the dates of the titles. This order of selection is to be violated only where the empresario’s deed conflicts with a previously existing title; and not then, if the land had been disposed of by the intestate in his lifetime, or his representatives since his death.

This is a qualification of his right to pretermit lands affected by previous titles, and when he attempts the exercise of the right, he should show that this restrictive condition does not attach. It would seem to be incumbent upon the appellee, when he proceeds to perform any act under the mandate, to make it appear to the satisfaction of the court that he labors under no disability from any of the conditions imposed by the decree of the coui’t upon the exercise of power in the particular instance. "What amount or character of evidence should be required it is not necessary precisely to define.

It would seem that the affidavit of the party would be, prima facie, sufficient to justify the court in authorizing the substitution; or a certificate from the recorder of titles in the counties where the lands have been or are now situated (if there have been any subdivisions of the original county), that no conveyance or transfer of such lands appears of record in his office, would be still more satisfactory evidence, and upon which the court could act with more assured confidence that the mandate would be executed according to its terms, and in accordance with its true spirit and meaning.

I do not perceive any very important objection to the action of the court in other particulars, in which it has been alleged to be erroneous. It was, perhaps, irregular for the court to act wholly upon information derived from the commissioner of the general land office, though his own investigations, or such as he may direct to be made, must be greatly aided by information imparted from that officer, and obtained from the records of the office. It is ordered, adjudged and decreed that the judgment be reversed, and the cause remanded for a new trial.