We deem it proper, before passing upon the motion for rehearing in this case, to express more fully the views of the majority of the court upon the particular question upon which the Chief Justice has dissented.
It seems to us that, to speak of the abandonment of his claim by Thacker, is an improper use of the term, and is a begging of the very question at issue. If the application, survey and three years' occupancy gave Thacker full title, then his subsequent removal from the land was no more an abandonment than would be the removal of the owner from land held by any other kind of title.
So much of the Act of August 12, 1870, under which Thacker acquired his right, as is applicable is quoted in the opinion of the Chief Justice.
The first section unqualifiedly provides that any single man twenty-one years of age shall be entitled to a homestead of 80 acres of land out of the unappropriated public domain of the State, upon the condition that he shall select, locate and occupy the same for three years and pay all office fees. If the Act stopped here, to determine the homesteader's right it would only be necessary to determine whether he had done what was thus required of him. But these broad terms are qualified by the provisions of section 2, imposing other conditions upon the acquisition of the right.
What are these additional conditions? Clearly, only that he have the land surveyed and the field notes returned to the General Land Office within twelve months after making his settlement, unless it be *Page 8 held that the issuance of a patent was essential to his title, and this we understand the dissenting opinion does not hold, but holds the contrary.
Now, if the patent is not essential to a full and indefeasible title, upon what reasoning can it be held that it is essential to such title, under the terms of the Act, that the homesteader make the proof of occupancy which, by the terms of the Act, is required for the purpose alone of entitling him to a patent? The Act, after providing what he shall do to entitle him to the land, then provides what further he shall do to entitle him to the evidence of his title furnished by the patent, which it is conceded is not essential to a full, indefeasible title. Why require the pre-emptor to make and file in the Land Office the affidavit required by section 2 of the Act? The Act says, to entitle him to a patent — not to serve as notice of his right in case he moves off of the land. To hold that it was necessary that appellee, in addition to having the land surveyed, the field notes returned to the Land Office and paying the fee, should also, as a condition of his right, make and file in the Land Office the affidavit prescribed, is to inject into the Act a condition which the Legislature either did not think of or did not consider necessary. To add this condition is, under the guise of judicial interpretation, to do what the Legislature probably should have done, and probably would have done, if they could have foreseen the occurrence of cases like the present, but what, in our judgment, they did not do, and is, not to interpret the statute, but to make one, in order to prevent a loss to an innocent person. Under the provisions of the Act as written, if the homesteader chose to rest his title or right upon the performance of the conditions prescribed, of survey, payment of fees and three years occupancy, without patent, he must, of course, be at all times ready to defend his title with proof of the performance of these conditions. If he desired to be relieved of this burden, then in order to be so relieved he would have to make his proof, once for all, file it in the Land Office and procure the patent. The penalty for not making this proof and procuring the patent was, not to lose his land, but to be prepared to defend his title by making the proof, as was done in this case.
If the Legislature had intended to make the filing of the affidavit in the Land Office essential to the title or right, they could not have expressed such intention in a way more calculated to mislead the unwary than was done, and we think it would not have been suggested to appellee in this way by the terms of the Act that he could not safely remove from the land, which he had had surveyed and had occupied for the required length of time, without first filing in the Land Office the affidavit of such occupancy.
Speaking for the majority, we have arrived at our conclusion, sustaining the judgment of the trial court, from an interpretation of the language of the Act, and have not felt authorized to depart therefrom by imputing to the Legislature an intention not to be gathered from the terms of the Act, and, in fact, inconsistent therewith. This conclusion is strengthened by the fact that in the later Act (article 4171, Revised Statutes) it is expressly provided, in unmistakable terms, that a failure to make the proof of occupancy as prescribed, as well as such *Page 9 failure in other particulars, should work a forfeiture of the right of the homesteader. This provision was incorporated in the Code of 1879 by the revisers, and could not affect the right of appellee, which matured in 1876. But even under this statute no time is fixed within which the proof must be made to avoid a forfeiture.
Neither Blount nor his vendee can claim ignorance of appellee's claim at the time their respective rights accrued. They deliberately took the chances of his returning and asserting his right. If appellee had remained on the land it would hardly be contended that he had forfeited his right so as to authorize the Land Commissioner to dispose of the land as unappropriated. When he had continued his occupancy as long as the law required, no purpose could be subserved by a continued occupancy, except to give notice of his claim. That was not necessary in this case, for the opposing parties had such notice. After appellee returned in 1907, he made the necessary proof and applied for a patent. The case seems somewhat analogous to that of a man who, having acquired full title to land by adverse possession under the statute of limitations of ten years, abandons such possession, so that not a trace thereof remains. This is not an abandonment of his right or title, which is not affected to any extent thereby. (Branch v. Baker, 70 Tex. 190.)
Clearly, the Legislature might have made appellee's right to the land dependent upon his making his proof of occupancy within some prescribed time, but it did not do so. By separating the conditions upon which he could acquire theland from the additional conditions upon which he could acquire the patent as evidence of his right, we think they expressed the intention that neither the affidavit of occupancy, filed in the Land Office, nor the issuance of the patent, should be necessary to complete his title.
For these reasons, we are of the opinion that the judgment of the trial court is correct, and should be affirmed.
ON MOTION FOR REHEARING.