Hemphill, Ch. J.
The controversy in this case has been waged with extraordinary zeal, vigor and pertinacity. Exceptions to pleading, to evidence, to the charges and rulings of the Court, grounds for new trial, and in error, are accumulated in masses in the record ; and extended though lucid and masterly arguments in support of the respective litigants, have been presented for the consideration of this Court.
[519]*519It would be not less tedious than unprofitable to discuss in detail the nineteen grounds of error assigned by appellant, and the three or four set up by the appellee. For the facts establish so conclusively the superior merits of the claim of the •appellee, that whatever the errors (if any there be) in the progress of the cause, yet the judgment being right on the merits cannot be disturbed. I shall not attempt to recapitulate the voluminous evidence in the case. A reference to the statement by the Reporter will make intelligible the positions assumed in the opinion. The suit involves the eastern half of a section of land in Peters’ colony, and it appears from the evidence, (to portions of which there were general indefinite exceptions which we believe to have been properly overruled,) that G. S. 0. Lenard, the vendor of the appellee, being over seventeen years of age at the date of his emigration to the country, settled on this half section in 1843 or 1844, prior in time to the ■settlement of the west half of the section by the plaintiff in the year 1844. True, the surveys of the sections as then recognized by the colonists, were subsequently corrected, (with the general assent of the colonists, the plaintiff included,) by retracing the lines of the southern and northern boundaries, but not the eastern and western, of the sections, and by which the former were removed from two hundred and fifty to three hundred yards from the lines as originally traced, and in consequence of such change, the house, but not the whole of the improvement was left out of the half section claimed by Lenard, and fell not into the west half on which the plaintiff had settled, but into a different section. But this modification did not affect the rights of Lenard. He still claimed the east half of section twenty notwithstanding its partial change of boundary, had another cabin built upon it, a portion of his original improvement was included within its limits, and on his return from a temporary absence in Tennessee, lived on the land until compelled by sickness to retreat to the house of his father who lived adjoining, and after the expiration of a temporary employment for hire in the neighborhood, he repaired, again, in the spring of [520]*5201847, to the tract in controversy on which he and the appelleehave ever since resided. He performed all acts, and complied with all legal formalities to secure his rights to the land. He obtained a certificate from the agent of the colony in 1847, and from the Commissioner appointed under the Act of 1850, procured another certificate which was by survey appropriated to this land. His claim to the land, continued down through the appellee, existed for ten years uninterrupted until the commencement of this suit; his two absences not being such as. on any reasonable or liberal principles of construction should, under the circumstances, deprive him of his right.
Let us now examine what were the acts of the appellant, relative to this land, during the long period of adverse claim, and possession by the vendor of the appellee.
The appellant removed to the country in 1844, leaving his wife and daughters at his former home in Missouri, and settled on the western half of the section, the eastern half of which was then claimed by Lenard, now by the appellee. Whether the plaintiff can be regarded as the head of a family at the date of his emigration, or can set up any pretensions to land as such at that date, is, to say the least, extremely doubtful. The law, as understood and recognized in the colony, was adverse to such claim; and such was the opinion of the plaintiff himself, who did not claim as the head of a family until 1847, and until after the removal of his wife to the country. And in 1850, before the Commissioner Thomas Wm. Ward, he solemnly swore that he, a married man, had emigrated to Texas and entered Peters’ colony as a colonist with his family in the year 1847. Whether his oath should preclude him from pretensions to lands on the ground of occupancy antecedent to 1847, is not, under the facts of this case, very material.. For, admitting (as was the fact) that he was settled in the country as a colonist prior to 1847, yet this will avail him. nothing, as will be seen, against the claim of the appellee. For, although the appellant did in 1844 settle on the western half of section twenty, yet this was consistent with and not in [521]*521derogation of the rights of appellee. There was a recognized divisional line between the eastern and western halves of the sections, and the latter half and that only was occupied by appellant or claimed by him before some time in the year eighteen hundred and fifty. He did not until that year advance a shadow of pretension to the eastern half which was occupied and claimed by the vendor of the appellee. By acts, by words, by acknowledgments, by virtual disclaimers often repeated, the plaintiff acquiesced in and recognized the claim of Lenard to the eastern half, not pretending, for many years, to set up one for himself. There may be doubt from the evidence, whether, under the stipulations of the contract, he could, at the date of his emigration, even admitting him to be the head of a family, have claimed more than a half section, but whether he could or not, one thing is certain, he did not claim the eastern half of section twenty, but when he made pretensions to more than a half section, he claimed in addition to the west half of section twenty, the half of a section still further west.
His claim to land was, in three several instances, surveyed at his own request, once before and once in 1848, and a third time in 1850, each survey including only the western half of section twenty, and the last survey made on a certificate under the law of 1850, though it is under his construction of this law, that the plaintiff has attempted to increase his pretensions so as to embrace the whole of the section instead of the west half, which only he had previously claimed. >
If one can, by express and virtual disclaimers of right to property, be precluded from subsequent assertion of such right, to the injury of others, it is quite manifest that the plaintiff is estopped from claiming the land in controversy.
It is urged for the plaintiff, that under the ordinance of 1845, (p. 85, Hartley,) he is entitled to the whole of the section; that by this ordinance, heads of families who were actual settlers, were entitled to six hundred and forty acres, and that at the adoption of the ordinance, the said Lenard was in Tennessee, absent from this State, and in fact was not an actual [522]*522settler, and consequently his claim can operate no bar to the plaintiff.
There are some insurmountable objections to this pretension on the part of the appellant. In the first place, if we give ■credence to the plaintiff’s oath, he was not in the country in 1845; but, admitting that he was individually present, yet he did not then claim as head of a family, and could not claim in that capacity according to the received law in Peters’ colony, ■and whether he could or could not claim in that capacity, yet he did not claim the land which is the subject of this suit.
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Hemphill, Ch. J.
The controversy in this case has been waged with extraordinary zeal, vigor and pertinacity. Exceptions to pleading, to evidence, to the charges and rulings of the Court, grounds for new trial, and in error, are accumulated in masses in the record ; and extended though lucid and masterly arguments in support of the respective litigants, have been presented for the consideration of this Court.
[519]*519It would be not less tedious than unprofitable to discuss in detail the nineteen grounds of error assigned by appellant, and the three or four set up by the appellee. For the facts establish so conclusively the superior merits of the claim of the •appellee, that whatever the errors (if any there be) in the progress of the cause, yet the judgment being right on the merits cannot be disturbed. I shall not attempt to recapitulate the voluminous evidence in the case. A reference to the statement by the Reporter will make intelligible the positions assumed in the opinion. The suit involves the eastern half of a section of land in Peters’ colony, and it appears from the evidence, (to portions of which there were general indefinite exceptions which we believe to have been properly overruled,) that G. S. 0. Lenard, the vendor of the appellee, being over seventeen years of age at the date of his emigration to the country, settled on this half section in 1843 or 1844, prior in time to the ■settlement of the west half of the section by the plaintiff in the year 1844. True, the surveys of the sections as then recognized by the colonists, were subsequently corrected, (with the general assent of the colonists, the plaintiff included,) by retracing the lines of the southern and northern boundaries, but not the eastern and western, of the sections, and by which the former were removed from two hundred and fifty to three hundred yards from the lines as originally traced, and in consequence of such change, the house, but not the whole of the improvement was left out of the half section claimed by Lenard, and fell not into the west half on which the plaintiff had settled, but into a different section. But this modification did not affect the rights of Lenard. He still claimed the east half of section twenty notwithstanding its partial change of boundary, had another cabin built upon it, a portion of his original improvement was included within its limits, and on his return from a temporary absence in Tennessee, lived on the land until compelled by sickness to retreat to the house of his father who lived adjoining, and after the expiration of a temporary employment for hire in the neighborhood, he repaired, again, in the spring of [520]*5201847, to the tract in controversy on which he and the appelleehave ever since resided. He performed all acts, and complied with all legal formalities to secure his rights to the land. He obtained a certificate from the agent of the colony in 1847, and from the Commissioner appointed under the Act of 1850, procured another certificate which was by survey appropriated to this land. His claim to the land, continued down through the appellee, existed for ten years uninterrupted until the commencement of this suit; his two absences not being such as. on any reasonable or liberal principles of construction should, under the circumstances, deprive him of his right.
Let us now examine what were the acts of the appellant, relative to this land, during the long period of adverse claim, and possession by the vendor of the appellee.
The appellant removed to the country in 1844, leaving his wife and daughters at his former home in Missouri, and settled on the western half of the section, the eastern half of which was then claimed by Lenard, now by the appellee. Whether the plaintiff can be regarded as the head of a family at the date of his emigration, or can set up any pretensions to land as such at that date, is, to say the least, extremely doubtful. The law, as understood and recognized in the colony, was adverse to such claim; and such was the opinion of the plaintiff himself, who did not claim as the head of a family until 1847, and until after the removal of his wife to the country. And in 1850, before the Commissioner Thomas Wm. Ward, he solemnly swore that he, a married man, had emigrated to Texas and entered Peters’ colony as a colonist with his family in the year 1847. Whether his oath should preclude him from pretensions to lands on the ground of occupancy antecedent to 1847, is not, under the facts of this case, very material.. For, admitting (as was the fact) that he was settled in the country as a colonist prior to 1847, yet this will avail him. nothing, as will be seen, against the claim of the appellee. For, although the appellant did in 1844 settle on the western half of section twenty, yet this was consistent with and not in [521]*521derogation of the rights of appellee. There was a recognized divisional line between the eastern and western halves of the sections, and the latter half and that only was occupied by appellant or claimed by him before some time in the year eighteen hundred and fifty. He did not until that year advance a shadow of pretension to the eastern half which was occupied and claimed by the vendor of the appellee. By acts, by words, by acknowledgments, by virtual disclaimers often repeated, the plaintiff acquiesced in and recognized the claim of Lenard to the eastern half, not pretending, for many years, to set up one for himself. There may be doubt from the evidence, whether, under the stipulations of the contract, he could, at the date of his emigration, even admitting him to be the head of a family, have claimed more than a half section, but whether he could or not, one thing is certain, he did not claim the eastern half of section twenty, but when he made pretensions to more than a half section, he claimed in addition to the west half of section twenty, the half of a section still further west.
His claim to land was, in three several instances, surveyed at his own request, once before and once in 1848, and a third time in 1850, each survey including only the western half of section twenty, and the last survey made on a certificate under the law of 1850, though it is under his construction of this law, that the plaintiff has attempted to increase his pretensions so as to embrace the whole of the section instead of the west half, which only he had previously claimed. >
If one can, by express and virtual disclaimers of right to property, be precluded from subsequent assertion of such right, to the injury of others, it is quite manifest that the plaintiff is estopped from claiming the land in controversy.
It is urged for the plaintiff, that under the ordinance of 1845, (p. 85, Hartley,) he is entitled to the whole of the section; that by this ordinance, heads of families who were actual settlers, were entitled to six hundred and forty acres, and that at the adoption of the ordinance, the said Lenard was in Tennessee, absent from this State, and in fact was not an actual [522]*522settler, and consequently his claim can operate no bar to the plaintiff.
There are some insurmountable objections to this pretension on the part of the appellant. In the first place, if we give ■credence to the plaintiff’s oath, he was not in the country in 1845; but, admitting that he was individually present, yet he did not then claim as head of a family, and could not claim in that capacity according to the received law in Peters’ colony, ■and whether he could or could not claim in that capacity, yet he did not claim the land which is the subject of this suit. Furthermore, the ordinance does not grant six hundred and forty .acres, in' so many terms, to the head of a family. Under the stipulation of the contract, he might not have been entitied to so much. The ordinance only declared this right to the amount to which he was entitled, provided it did not exceed six hundred and forty acres. This is the only effect of the ordinance. It grants land, but without specification of exact quantity, or without giving special preference of location, either on the ground of occupancy or otherwise. Such would be the condition of the plaintiff’s claim, if the ordinance alone was considered, even admitting, for the sake of the argument, that by absence Lenard had forfeited his right, and that the acts of the plaintiff, in acknowledgment of the rights of Lenard, should pass for nothing. The plaintiff at. best would have a right only to an indefinite quantify of land, not to exceed a certain amount, but he would have no more special right to claim the land in question, than any other land in the colony.
But the main stratum on which rests the claim of the plaintiff, is the Act of the 21st January, 1850. The Sections which have a bearing on the rights in this controversy are the third, fourth and sixth, (Art. 2231-32-34,) and their substance is, that where two or more colonists have settled on one and the same section, half section or fraction of a section, the oldest settler shall be entitled to the preference, and the party dispossessed shall be entitled to the proper quantity to be located [523]*523elsewhere within the colony limits; and that where two or more colonists shall have settled on the same section, half section or fraction of a section, by mutual consent, the same shall be divided according to agreement, and each colonist so settled shall be entitled to his unsatisfied residue out of other vacant lands within the limits of the colony, and each settler shall be confined to the section, half section or fraction of a section, as theretofore surveyed, but if the field notes cannot be obtained, then the County Surveyor is required to survey the section, half section, or quarter section for such settler.
The effect of these provisions, it would seem, is to give to the oldest settler the section, half section or quarter section on which he settled, in preference to one whose settlement on the same section, half section or quarter section was of a posterior date; but not to bestow the whole of a section on one who had settled only on a half section, laying no claim to the other half, and-which in fact was occupied and claimed adversely, and whose previous survey did not embrace the whole, but only the half section which he had claimed and settled. But, were it even admitted that the plaintiff was the oldest settler on this'section, (which, however, is not the case in proof,) and were it also conceded that the plaintiff, by , priority of settlement, is entitled to the whole of the section, though he claimed but half, yet these concessions would be unavailing to the plaintiff. For, by statute, when colonists were by mutual consent settled on the same section, &c., a division was to be made between them according to agreement. This is not restricted to cases where there has been a formal written or verbal agreement, executed cotemporaneously with the settlements of the respective parties, but covers cases where settlers on the section, &c., claimed portions thereof with the concurrence, actual or implied, of other settlers on the same section, half section, &c. In this case, there was an established dividing line between the plaintiff and Lenard. The proofs of plaintiff’s assent to Lenard’s settlement are multiplied, and they are as conclusive against him as if an indenture of agreement had existed between the parties.
[524]*524At the close of the able and full charge pronounced by the Court; the jury were instructed that if they found that the defendant and his vendor Lenard had been in the peaceable and uninterrupted adverse possession of the land in controversy for the term of three years next before the institution of this suit, under a survey made by a genuine land certificate, then they should find for the defendant. This has been assigned as error, but it is believed on insufficient grounds. In terms it conforms to the requisitions of the 15th Section of the statute of limitations. It enumerates the elements necessary to constitute the bar of the statute, and if applicable to the facts it was an exposition of the law of the case by which the jury should have been controlled. The facts in relation to the title of the vendor of appellee, were that by virtue of the Act of 1850 he had received a legislative grant for the amount of land to which he was entitled, and when this was fixed by actual survey in virtue of a certificate issuing under the Act, he had then such title to the specific tract surveyed, as would, if held adversely for three years, raise a bar against all suits instituted for the recovery of tha,said land. This half section was surveyed for Lenard more than three years before the commencement of this suit, and the continued adverse possession under such survey operated as a bar to the recovery by' the plaintiff.
Judgment affirmed.