—The bond upon which this action is founded is conditioned, that appellant shall make, or cause to be made, to appellee a good and sufficient title to one hundred and sixty acres of land, the west half of a survey of three hundred and twenty acres made for appellant as his preemption claim, so soon as appellant should ojbtain a patent to the land, using diligence to procure it.
From the evidence, it appears that Wheeler settled upon the land in December, 1854, or January, 1855. If the land claimed by him were liable to his settlement and pre-emption claim, he was entitled to one hundred and sixty acres only.
The act of February 13, 1854, provides, that “all individuals who have settled upon and improved, or may hereafter settle upon and improve, a portion of the vacant public domain, which has been neither filed upon, entered, located, or surveyed, by virtue of some genuine, legal, and valid certificate, or other evidence of title to land, previous to such settlement and improvement, shall have the privilege of locating and appropriating a tract of such vacant land, not exceeding one hundred and sixty acres, so as to include said settlement or improvement, in preference to all other claims or claimants, and all files, entries, loea*243tions, or surveys made so as to interfere with the preference granted hy his act shall he null and void.” (Paschal’s Dig., Art. 4341.)
The appellant had no title to the three hundred and twenty acres of land.
The appellee acquired no right hy his purchase, as appellant retained the one hundred and sixty acres' upon which his improvement was situated.
The appellant did not convey to appellee any right to the land, and was unable to do so for want of title to the land. He received money from the appellee without giving anything for it. It is inequitable for him to retain it. He has not complied with his bond, and it clearly appears that he cannot do so. He has elected to recover the money he had paid on the contract and interest. We think, in the absence of any allegation of fraud, this was the true measure of his damage.
It is said, in Chitty on Contracts, 539, “Where money has been deposited or paid on a contract, and before any benefit is derived by the payer, or any part of the contract has been performed by the other party, and the consideration wholly fails, an action may be maintained upon the common count to recover back the amount. Thus, if the purchaser of an estate by auction or private contract pay a sum of money as a deposit, or in part of the purchase-money, and a good title cannot be made out according to contract, such sum of money may be recovered back.”
It is, however, alleged in the pleadings, and relied upon in the argument by appellant, that plaintiff prevented the defendant from obtaining the title to the land by appropriating it to himself.
The charge of the court on this point was as favorable to the defendant as the law would authorize. The plaintiff, on discovering that the defendant had no title to the property which he had assumed to sell, might properly secure the land himself. It was the land of the State and *244not of the defendant; and the defendant, hy assuming to sell the land which was vacant, and of which he was not in actual possession, eannnot be held as having placed the plaintiff in possession, so as to create the relation of vendor and vendee.
In the case of Spier v. Laman, decided at Austin in 1863, (27 Tex., 205,) Laman had gone into possession of the land, claiming under a title drawn from Spier, who had been in possession of the league of land for many years. The land was granted to Spier after the closing of the land office in 1835. In 1848, Spier sold two hundred acres of the land to Willbarger. Li 1851, Willbarger sold to Laman, who was in possession in 1853, and had made considerable improvements.
On the 24th óf February, 1854, Laman made application to have three hundred and twenty acres of the land surveyed for himself, claiming it as his pre-emption' right. In September, 1856", there was an act of the legislature passed, granting to Spier the land surveyed for him as a colonist, in 1835, with a proviso that it should not interfere with the rights of third parties. Suit was instituted by Spier against Laman in January, 1857. Pending this suit a patent was issued to Laman. There was a verdict for Laman, and Spier appealed.
It was contended for Spier, in the argument of the case in this court, that the defendant, having entered into the possession of the land by mesne- conveyance from the j>lain-tiff, is estopped from setting up the possession under and by virtue of which he seeks to create a right to a pre-emption to the prejudice of his vendor. It was held by this court, that “the fact of Laman having purchased under Spier’s title did not preclude him, when he ascertained that this was worthless, and that the land was a part of the public domain, from claiming a pre-emption on it.” This opinion is sustained by Cravens v. Brooke, 17 Tex., 268, and Jennings v. De Cordova, 20 Tex., 508.
*245It appears from the testimony, that in 1858, at the time the surveyor was upon the ground for the purpose of surveying the lands claimed by appellant and appellee, there was some dispute between them as to where the division line should be run. It was finally decided that it should he run as originally agreed between them, that appellant was to perfect the title to the land which he had sold to appellee at his (appellant’s) costs, and that appellee should pay to appellant $60, which would have been carrying out the contract as originally made. This arrangement failed in consequence of appellee demanding security of appellant. Appellee was under no obligation to give to appellant the right of perfecting the title to the land under the claim of appellee. It appears that it would have been well for appellant to have accepted; it certainly is a matter of which he cannot here complain.
It is assigned for error, that, 1st, the court erred in overruling the defendant’s motion for a continuance. This motion was based on an affidavit, that the defendant could not “go safely to trial for the want of a transcript from the general land office of the affidavit, claim, and field-notes of plaintiff to the land described in the bond sued on; that said evidence is material, and that he did not know the materiality of said evidence till the present term of the court.” The affidavit does not state that the evidence could not have been procured in time for the trial at that term of the court, after he was advised that it was material for him to have the testimony. He does not state that he had used any diligence to procure the testimony. Appellant, in his argument in this court, has not designated the error of the court in refusing the continuance.
It is assigned as error, that the court permitted the amended answer and exhibits in another cause to be given in evidence to the jury. The answers alluded to were legal evidence against appellant. It was his statement, made under oath.
*246It is further relied upon as error, that the court refused to permit all the papers of the cause from which the answer was read to be given in evidence to the jury. There was no error in excluding this testimony.
The plaintiff had read in evidence answers of defendant, in which he asserted a claim to one hundred and sixty acres of land, and this was evidence tending to show that defendant had abandoned one-half of the pre-emption claim under which the alleged right of defendant to the land was derived. The evidence given by the plaintiff, as we have said, was pertinent to the issue and properly received. If there were among the papers of the cause a sentence or line that might tend to explain or vary the testimony which the plaintiff had introduced, the defendant should have called the attention of the court to the particular testimony desired to be introduced. If it were proper to be considered by the jury, and improperly excluded, the question being presented upon the record, the ruling excluding the testimony might be revised. But the matter was not so presented in- this case. The testimony offered occupies fifteen pages of this record, the larger portion of which consisted of the previous pleadings of Kimball, the plaintiff in this cause, and was irrelevant and illegal testimony.
The answer of the appellant, with the papers offered to be read in evidence to the jury, if presented alone, might have been proper evidence for the jury to consider in connection with the answers of the appellant read by the appellee. It does not, however, appear that this answer was called to the attention of the court in ruling upon this question.
To enable this court to revise the action of the District Court upon questions in which the ruling is supposed to be erroneous, it devolves upon the appellant or plaintiff in error to see that the record is so made up that, if there be error, it is made apparent upon the record. ¡No error is perceived in the judgment in this cause, and it is
Affirmed.