J. D. GRANT V. W. T. SIMPSON, 3 Tex. L. R. 505

OPINION. The appellant’s second assignment of error is as follows, viz.: The court erred in charging the jury as matter of law that Grant had abandoned the location made by him on the land in December 1874. 1 — Because the evidence does not show such abandonment, nor warrant such a charge’ 2 — Because, defendant had plead specially his defense, and there was no such defense set up by defendant in his answer.

Although the procurement from the general land office, by Grant, of a certificate for the unlooated balance of the Meedez certificate had the legal effect to forfeit his survey under said certificate in 1874 (Johnson v. Eldridge, 49 Texas) yet we think that it was error to apply the charge given on this subject to this case, except as it might be made applicable to such rights of the defendant as may have intervened after November 8, 1867, when the plaintiff withdrew from the general land office his evidence of right to the Mendez certificate under which his survey in 1874 was made.

The defendant took steps to appropriate land by pre-emption by settling on and occupying the land in April 1876 ; his application to appropriate the same as a homestead was made 12th of May, 1870. During those periods of time the plaintiff had in no wise forfeited his snrveyof 1874; the land was not vacant and unappropriated, but on the contrary, as the evidence clearly shows, was duly surveyed, the survey duly returned to the general land office, where the land certificate under which the survey was made was duly filed, and to which said survey was applied.

No advantage or right could accrue to the defendant by reason of his said settlement and application whilst the land was thus at that time appropriated by Grant, and which was not filed until November 8, 1876. (Johnson v. Eldridge, 49 Tex., 521. McKinney v.

Grassmeyer, 51 Tex., 382.) After November 8, 1876, the defendant having taken no steps to institute proceedings appropriate and required by law regulatingpre-emptions, and his former and initiatory acts of claim as a preemptioner being wholly invalid, conferring no rights upon him, there remains no basis on which he can rest to assert a claim against the foi-cc and effect of the plaintiff’s survey.

The plaintiff holds the legal title by a patent, and it carries with it a prima facie right to the land granted by the state to the patentee, and to rebut such presumption, it devolves on the adverse claimant to clearly establish a prior or superior equitable right. If both parties have equities, unless there is a decided preponderance, the legal title must prevail. (Johnson v.

Eldridge, 49 Tex., 507.) In this case, as we have seen, the defendant acquired no equity by-settling on and claiming the land before it had become forfeited November 8, 1876, and we think the charge upon the subject of the plaintiff’s abandonment or forfeiture, as the same was given, was misleading and erroneous.

In addition to this view, we think the charge was inapplicable to the evidence and misleading, because if the abandonment or forfeiture of the survey of 1874 occurred from the withdrawal by Giant of his remaining interest in the Mendez certificate from the general land office, by obtaining the issuance of the certificate for the unlocatod balance, ho was entitled to 90 days from the time the same was so withdrawn, to the exclusion, of all other persons, to locate and survey the land.

Article 7099 qq. P.

Dig. (Acts of 1873, page 180) provides that “when a survey has become forfeited and void from'any cause, so soon as such forfeiture is discovered, the commissioner shall notify the party interested in such survey or location, of such forfeiture, and no new file or location shall be made on the land covered by such forfeited survey, except by the owner of such forfeited survey or location, for a period of ninety days after such notice to the interested party.” This language is broad and explicit, it embraces cases of forfeited rights in surveys from any cause whatever, and in this case whether notice need to have been given to the plaintiff or not, under the meaning and intent of the statute, the plaintiff would have been entitled to the ninety days from the forfeiture within which to relocate and appropriate the land.

He caused the land tobe surveyed on .December 5,1876, which was within the ninety days. The charge of the court says that the original location of the Mendez certificate by J. D. Grant in 1874 was a valid location as against the subsequent pre-emption claim of defendant, if defendant had actual notice of such location.

This view taken by the judge implies that the plaintiff’s forfeiture or abandonment of the survey did not originate in its inherent nullity as a valid location made by virtue of a valid certificate and survey, and we infer that the abandonment referred to in the chargo has relation to the withdrawal of the certificate.

The defendant had constructive notice of the survey of 1874, as it appears from the certificate of the county surveyor attached to the field notes of that survey filed in the general land office that the record of the survey, together with a plat of the same was recorded in his office as early at least as December £9,1874, the date of his certificate. We eonclude that the judgment ought to be reversed and the cause remanded. Walker, J. Report of the commissioners of appeals examined, their opinion adopted and the judgment reversed and the cause remanded. Willie, C. J.