Walker, P. J. Com. App.
It is manifest from the statement of facts, the charge of the court, the instructions asked by the plaintiff, and the admissions of certain facts contained in the statement of facts, as well as from the errors assigned and the briefs and argument of counsel in this court, that this case was tried upon the concession that the defendants held and claimed title to the land in controversy under a chain of transfer to them under James Marlin. The charge of the court so treated it, the instructions asked implied it; and there is in the statement of facts evidence which seems to imply that the defendant Bennett bought the land from Marlin, and acquired by transfer, in a proper mode, the evidence of the interest thus purchased. It is manifest, from the [299]*299same indications, that the defendants did not acquire at one and the same time the quantity of land which they claimed to have acquired under the Marlin headright survey; but that a portion of it was acquired by purchase from Leach, Marlin’s vendee, in the year 1868; and that defendant Bennett took possession of the Stewart 610-acre tract in 1859, but under what purchase or transaction is not made to appear. The judge, in his charge, without objection from either party, and it may be assumed that he stated truly, therefore, the status which the parties had given to the facts, in direct terms ehminated from the controversy all the land described in plaintiff’s petition, except the Leach and Stewart tracts, because the parties themselves had done so before the court, by conceding .that the defendants held under a chain of transfer from and under James Marlin. The statement of facts is wanting in specific evidence of any distinct transfer to the defendants under the Marlin headright and survey; and it is for that reason that the foregoing observations are made. Unless such a material and vital element of a defense under the statute of limitations, as the chain of transfer under which the defendants attempt to support their possession, is established by proof; or is waived by concession or admission as to its existence, of course no defense under such a plea could be made available to defendants not holding in privity with such title. Under the interpretation, therefore, which we place upon the record before us, we deem it proper to consider the facts before the jury as the parties and the court there at the trial regarded them. Any question of transfer or deraignment of title through Marlin to the defendants seems to have been wholly ignored, and the case tried upon the assumption that the defendants were assignees by chain of transfer down to themselves; and the reservation or qualification made by the plaintiff in respect to the Stewart and Leach tracts do not appear to have been [300]*300made as to those tracts because the lands referred to as such were not included within the transfers of title to the land claimed by the defendants; but the admission thus made had in view the mere question of fact as to possession, and time thereof as to those two tracts, the Leach and the Stewart, because the facts in that connection, as to those two tracts, presented a legal question on the rights of defendants under the statute of limitations, different from the balance of the land; as to which balance, the question was surrendered by plaintiff in favor of the defendants, as the jury were instructed in the presence of counsel, with their seeming consent and approval.
Considering, then, the evidence as to the time when and by whom the Leach and Stewart tracts, as they are termed, were possessed by the defendants, it appears that the defendant Bennett took possession of the Stewart tract in February, 1859, and held it ever since. It will be intended that, in doing so, he did it lawfully, and with the' consent of its then owner, claimant or ostensible owner, and therefore that he did so under his purchase, and at the time thereof, or afterwards. This suit was brought May 29, 1872. Deducting the period of the suspension of the operation of the statutes of limitations, as the charge directed, and the bar of three years would be full and complete; the period of time thus embraced would be nearly four years, or quite that time, if the 1st day of February, 1859, should be taken as the initial point of time from which to make the estimate.
Next, as to the Leach tract. It was admitted by the plaintiff that James Marlin was in possession of the entire league from the date of his survey, which, as has been before stated, was on the 7th of December, 1853. He conveyed to Leach on the 11th of May, 1857. On the 8th day of December next preceding the date of this deed to Leach, the title of Marlin under the three years’ statute [301]*301of limitations was complete and perfect, so far as concerns the essentials of actual, continuous, peaceable possession for the requisite three years are concerned. It does not become important to the rights of the defendants to follow any further the facts respecting the subsequent adverse continuous possession of the defendants of that tract of land. It was, however, it seems, afterwards occupied in 1866 under the Leach title, and Bennett bought in 1868, and under his title it has been occupied ever since. The two years’ possession by defendant after March 30, 1810, does not, however, add to the strength of defendants’ title.
The legal conclusion arrived at, as to the effect of the completion of the bar of three years’ adverse possession, whilst the land was possessed by the original grantee, Marlin, is maintained by the supreme court, when composed of Chief Justice Roberts and Special Justices A. S. Walker and Charles S. West (the Hon. A. S. Walker delivering the opinion of the court), in the case of Erhard v. Hearne, 47 Tex., 469. The proposition itself was there distinctly decided, and held that the exemption from suit given by the fifteenth section of the statute of limitations can be pleaded as a defense by one in possession in privity of estate, thoxigh with disconnected possession, with one who had such three years’ possession under the statute. Of course the application of this rule is not less decisive of the defense set up, of limitations, as to the Stewart than the Leach tract; it embraces both with equal conclusiveness; but we saw proper to show that, as to the Stewart tract, resort was not required, under the fact's, to the bar of the statute which had been previously consummated, but that it was otherwise complete under their own personal acts of occupancy and claim.
It is not necessary, in this case, to consider whether the three years’ bar has the effect to actually extinguish the adverse title under which the plaintiff claims. The [302]*302trenchant reasoning, and the cogent illustrations in its support, contained in the opinion of Chief Justice Roberts in Cunningham v, Frandtzen, 26 Tex., 38 (quoted by Special Justice Walker), in support of the affirmative of that question, commend the construction he gave to it strongly to our concurrence, and to incline our judgments to follow that interpretation to its legitimate results.
But it is urged by the appellant that the certificate and survey of Marlin’s headright cannot support the defense of the statute of limitations, because the traveling board failed to recommend the certificate for patent. The question is unlike that which arises in cases where there is a failure by the board to indorse their express approval of genuineness and legality, as they did do in respect to this
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Walker, P. J. Com. App.
It is manifest from the statement of facts, the charge of the court, the instructions asked by the plaintiff, and the admissions of certain facts contained in the statement of facts, as well as from the errors assigned and the briefs and argument of counsel in this court, that this case was tried upon the concession that the defendants held and claimed title to the land in controversy under a chain of transfer to them under James Marlin. The charge of the court so treated it, the instructions asked implied it; and there is in the statement of facts evidence which seems to imply that the defendant Bennett bought the land from Marlin, and acquired by transfer, in a proper mode, the evidence of the interest thus purchased. It is manifest, from the [299]*299same indications, that the defendants did not acquire at one and the same time the quantity of land which they claimed to have acquired under the Marlin headright survey; but that a portion of it was acquired by purchase from Leach, Marlin’s vendee, in the year 1868; and that defendant Bennett took possession of the Stewart 610-acre tract in 1859, but under what purchase or transaction is not made to appear. The judge, in his charge, without objection from either party, and it may be assumed that he stated truly, therefore, the status which the parties had given to the facts, in direct terms ehminated from the controversy all the land described in plaintiff’s petition, except the Leach and Stewart tracts, because the parties themselves had done so before the court, by conceding .that the defendants held under a chain of transfer from and under James Marlin. The statement of facts is wanting in specific evidence of any distinct transfer to the defendants under the Marlin headright and survey; and it is for that reason that the foregoing observations are made. Unless such a material and vital element of a defense under the statute of limitations, as the chain of transfer under which the defendants attempt to support their possession, is established by proof; or is waived by concession or admission as to its existence, of course no defense under such a plea could be made available to defendants not holding in privity with such title. Under the interpretation, therefore, which we place upon the record before us, we deem it proper to consider the facts before the jury as the parties and the court there at the trial regarded them. Any question of transfer or deraignment of title through Marlin to the defendants seems to have been wholly ignored, and the case tried upon the assumption that the defendants were assignees by chain of transfer down to themselves; and the reservation or qualification made by the plaintiff in respect to the Stewart and Leach tracts do not appear to have been [300]*300made as to those tracts because the lands referred to as such were not included within the transfers of title to the land claimed by the defendants; but the admission thus made had in view the mere question of fact as to possession, and time thereof as to those two tracts, the Leach and the Stewart, because the facts in that connection, as to those two tracts, presented a legal question on the rights of defendants under the statute of limitations, different from the balance of the land; as to which balance, the question was surrendered by plaintiff in favor of the defendants, as the jury were instructed in the presence of counsel, with their seeming consent and approval.
Considering, then, the evidence as to the time when and by whom the Leach and Stewart tracts, as they are termed, were possessed by the defendants, it appears that the defendant Bennett took possession of the Stewart tract in February, 1859, and held it ever since. It will be intended that, in doing so, he did it lawfully, and with the' consent of its then owner, claimant or ostensible owner, and therefore that he did so under his purchase, and at the time thereof, or afterwards. This suit was brought May 29, 1872. Deducting the period of the suspension of the operation of the statutes of limitations, as the charge directed, and the bar of three years would be full and complete; the period of time thus embraced would be nearly four years, or quite that time, if the 1st day of February, 1859, should be taken as the initial point of time from which to make the estimate.
Next, as to the Leach tract. It was admitted by the plaintiff that James Marlin was in possession of the entire league from the date of his survey, which, as has been before stated, was on the 7th of December, 1853. He conveyed to Leach on the 11th of May, 1857. On the 8th day of December next preceding the date of this deed to Leach, the title of Marlin under the three years’ statute [301]*301of limitations was complete and perfect, so far as concerns the essentials of actual, continuous, peaceable possession for the requisite three years are concerned. It does not become important to the rights of the defendants to follow any further the facts respecting the subsequent adverse continuous possession of the defendants of that tract of land. It was, however, it seems, afterwards occupied in 1866 under the Leach title, and Bennett bought in 1868, and under his title it has been occupied ever since. The two years’ possession by defendant after March 30, 1810, does not, however, add to the strength of defendants’ title.
The legal conclusion arrived at, as to the effect of the completion of the bar of three years’ adverse possession, whilst the land was possessed by the original grantee, Marlin, is maintained by the supreme court, when composed of Chief Justice Roberts and Special Justices A. S. Walker and Charles S. West (the Hon. A. S. Walker delivering the opinion of the court), in the case of Erhard v. Hearne, 47 Tex., 469. The proposition itself was there distinctly decided, and held that the exemption from suit given by the fifteenth section of the statute of limitations can be pleaded as a defense by one in possession in privity of estate, thoxigh with disconnected possession, with one who had such three years’ possession under the statute. Of course the application of this rule is not less decisive of the defense set up, of limitations, as to the Stewart than the Leach tract; it embraces both with equal conclusiveness; but we saw proper to show that, as to the Stewart tract, resort was not required, under the fact's, to the bar of the statute which had been previously consummated, but that it was otherwise complete under their own personal acts of occupancy and claim.
It is not necessary, in this case, to consider whether the three years’ bar has the effect to actually extinguish the adverse title under which the plaintiff claims. The [302]*302trenchant reasoning, and the cogent illustrations in its support, contained in the opinion of Chief Justice Roberts in Cunningham v, Frandtzen, 26 Tex., 38 (quoted by Special Justice Walker), in support of the affirmative of that question, commend the construction he gave to it strongly to our concurrence, and to incline our judgments to follow that interpretation to its legitimate results.
But it is urged by the appellant that the certificate and survey of Marlin’s headright cannot support the defense of the statute of limitations, because the traveling board failed to recommend the certificate for patent. The question is unlike that which arises in cases where there is a failure by the board to indorse their express approval of genuineness and legality, as they did do in respect to this certificate, and where they have qualified their action in refusing to recommend for patent by such a preface as they used in this instance, and placing their action on the ground of mere irregularity in the matter of taking the oath, and the dates.
The commissioners to detect fraudulent land certificates (“traveling board,” as commonly designated) were required to report for patent “ such .certificates as they find to be genuine and legal.” Hart. Dig., art. 1946. The commissioner of the general land office was “prohibited from issuing a patent upon any survey that shall not have been, or may hereafter be made by authority of a certificate returned as genuine and legal by the commissioners appointed by this act.” Hart. Dig., art. 1950. This certificate was returned by that authority in the very terms of the law, as both genuine and legal. In the case of Miller v. Brownson, 50 Tex., 593, where parol evidence was attempted to be used to establish the fact that the commissioners did in fact determine and intend to return the certificate for patent, the opinion says: “The determination of the board of commissioners in [303]*303favor of the genuineness of the certificate, however clearly and conclusively shown, is wholly immaterial, in view of the fact that their report shows that they failed to recommend it as genuine and valid; for a patent could not he legally issued on said certificate, admitting it to have been genuine, unless it was ‘returned as genuine and legal by the commissioners.’” Hart. Dig., arts. 1946, 1950; Pasch. Dig., arts. 4218, 4242, 4243, 4245. The court there quoting from the language of the law, signify the opinion that the recommendation by the commissioners for patent, nor their declension thus to recommend, is not the test by which to determine the authority of the commissioner of the general land office to issue a patent. It may be doubted at all events, whether, when the commissioners have reported a certificate as genuine and legal, their refusal to recommend for patent, because of informalities or irregularities which have transpired in its procurement, amounts to a prohibition against patenting, or to anything more than cautionary and advisory action on their part for the guidance of the commissioner of the general land office.
Article 2021, Hart. Dig., provides “that the commissioner of the general land office is hereby authorized and required, forthwith, to make out patents upon all claims which have been or may hereafter be returned as genuine and justly entitled by the different boards of land com-missioners, appointed under ‘ An act to detect fraudulent land certificates,’ whether the same has been obtained in strict accordance with law or not.” Act of January 19, 1841.
The validity of a location and survey of a headlight certificate' which was not recommended for patent by the commissioners arose for determination in Whitehead v. Foley, 28 Tex., 12. The report made upon the certificate' by the commissioners was, in substance, the same as in this case, viz., “ for the action of the government, believ[304]*304ing it to be a just claim,” but declining to recommend it for patent, because,the claimant had not subscribed the oath required by the 12th section of the land law of December 14, 1837. It was held in that case, that, under art. 2021, Hart. Dig., above quoted, certificates of this kind were made valid, and • patents expressly required to be issued upon them; and that subsequently to the date of the law, claimants under them were certainly entitled to all the rights and privileges of the holders of other valid and established claims for land.
It is unnecessary to consider any other question presented by the record' under the assignment of errors. There, is no such error apparent in the charge as to warrant any just complaint against it.
The admission of evidence which was excepted to on that branch of the case which related to the Basques grant need not be considered; for, whether it was erroneously admitted or not, cannot affect the result of this appeal, as there was sufficient competent evidence to warrant the verdict under the defense of the statute of limitation; especially as no other verdict than that which was rendered ought to have been rendered, had the evidence objected to been excluded from the jury. Pridgen v. Hill, 12 Tex., 374; and see Davis v. Loftin, 6 Tex., 489.
Our conclusion is that the judgment ought to be affirmed.
AfFTRMFT)
[Opinion delivered May 31, 1881.]