This suit was brought by appellees, to quiet their possession, and to remove a cloud cast by appellant upon their title to two hundred and seventy-•three acres of land, by causing the same to be located and surveyed on the 7th of February, 1873, as vacant and unappropriated public domain, by virtue of a certificate for three hundred acres of land, issued by the Commissioner of the 'General Land Office to said Austin, as assignee of Isaac P. Langston, and the return of the field-notes of said survey, as 'corrected October 17,1873, to the General Land Office, with •the intention of obtaining a patent for said land, to which appellees claim to have a prior equitable title.
It appears from the statement of facts, that the two hundred and seventy-three acres of land in question is a part of a tract of four hundred and fifty-eight acres, surveyed on the 28th of September, 1853, for "William B. Miller, the former husband of one of the plaintiffs and father of the others, issued to him as a colonist, in Mercer’s colony. The field-notes of the survey, together with the certificate by virtué of which it was made, was shortly thereafter duly returned to the General ■Land Office. But on examination by the commissioner, on application for a patent, it was found that the survey conflicted, to the extent of two hundred and seventy-three acres, (the land now in controversy,) with a survey of six hundred and forty acres, made May 8, 1846, for J. F. Graham.
Appellees insist that tins survey was illegal and void, and presented no valid objection to the patenting of the land to said Miller, because, as they say, it appears from the case of Melton v. Cobb, 21 Tex., 539, that the surveyor who made the survey had notice of the act of 25th of June, 1845, and knew the land was within the limits of Mercer’s colony, and *243coulcl not be legally surveyed on said Graham’s certificate when he made the survey. But evidently the parties in this suit are not affected or bound by evidence, however conclusive it may seem to be, given in another case, with which they had no connection, even if the record of such case had been offered in evidence on the trial. If, however, it had been shown that the surveyor knew the land was within the limits of Mercer’s colony when he surveyed it for Graham, it does not follow that the survey was illegal, and did not segregate the land from the public domain. For aught that is shown to the contrary, the land may have been appropriated by Graham, by a valid file of his certificate upon it, prior to the law authorizing its appropriation under the colonial contract with Mercer.
It further appears that Miller, finding that he could not get a patent for said four hundred and fifty-eight acres of land, ■for which he had caused the field-notes, together with his certificate, to be returned to the General Land Office, as aforesaid, on account of its conflict with said Graham’s survey, on the 7th of April, 1876; caused a survey of that part of the land not in conflict with the Graham tract to be made, and the field-notes of the last survey to be returned to the General Land Office; and on the 26th of July, 1856, a patent was granted Mm for the land thus resurveyed.
The original field-notes of Miller’s firsj survey for four hundred and fifty-eight acres, the commissioner testifies, is not now in the land office, and there is no record or memorandum in the office showing when or by whom it was taken out. But from the erasure in the register, showing the return of the certificate on the 23d of February, 1854, and that only one hundred and eighty-five acres were appropriated by it, instead of four hundred and fifty-eight acres, as originally entered, it is not unreasonable to infer that the field-notes of the original survey were withdrawn for correction, on account of the conflict with the Graham survey,, and the field-notes of the second survey were returned to the *244office in their stead. The last survey was evidently received and acted on in the office, as the corrected survey of the land which Miller desired to appropriate by his certificate at that time. Whatever may have been Miller’s purpose and intention, it cannot be held that the first of these surveys can be regarded as a subsisting and continuing appropriation of the entire land after he applied for and obtained the patent upon this resurvey; and although it appears from the deposition of the Commissioner of the General Land Office that the land appropriated by Graham’s survey became a part of the public domain on the 1st of August, 1857, by his failure to comply with the provisions of the act of August 30,1856, it does not appear that either Miller, in his lifetime, or the plaintiffs, since his death, by any action of theirs in the General Land Office or in the county surveyor’s office, previous to the survey of the land for the defendant, indicated a purpose to appropriate or claim it under or by reason of the original survey.
The idea which seems, to be conveyed in the charge of the court, that if the certificate and field-notes of the original survey were in the land office when the land became vacant, and Miller had not intended to abandon, but still insisted on his right to the land, he would be entitled to it, was unquestionably erroneous, and calculated to mislead the jury.
The resurvey and patent of a part of the land was a presumptive relinquishment by Miller to that part of it not embraced in the resurvey. A subsequent appropriation of it should be initiated by a file, location, or survey in the county surveyor’s office, and not by indicating a claim to it in the General Land Office. If there were no adverse claimant, plaintiffs would have to cause a survey of it to be made by the county surveyor, and the field-notei recorded' and returned to the General Land Office, before he could get a patent.
The plaintiffs having failed to appropriate the land by a valid file, location, or survey prior to its survey for defend*245ant, must rest their right to the relief given them by the decree, upon their long possession of the land prior to its survey for appellant. The testimony shows that Miller settled with his family upon the land sometime in 1849, his dwelling and a part of his farm being on the one hundred and eighty-five acres survey, and the other part on the tract here in controversy; and that he and the plaintiffs have been in possession of the land located by appellant, by themselves and tenants, from that time until the trial of the case in the District Court. The actual possession by plaintiffs, it must be conceded, was sufficiently long to give title by limitation, if in view of the facts of the case their possession can he held to have this effect.
The charge of the court upon the question of limitation was certainly loose and indefinite. ■ If we understand it, the judge intended to convey the idea that if a survey of the land had been made, and the field-notes and certificate returned to the General Land Office, the State was thereby notified of the extent of the claim; and in that event possession for ten years would give a title upon which such a suit as this could be maintained, unless it was shown that the possessor had abandoned all claim by virtue of such survey. To give the charge practical application to this case, we must suppose the court intended the jury to understand, if the State was notified of the boundaries of the claim, by the return of the .field-notes to the General Land Office, it was immaterial whether the survey was legal or not; or that whether the right to be barred was in existence, or was subsequently acquired from the State, the party in possession would be entitled to the protection of the statute; for if the survey was valid and the land was vacant, unless it was afterward abandoned, the certificate and survey would give a title which would, not need the aid of.the statute of hmitations for its support; and if there was an existing adverse claim, possession, under the circumstances indicated, for less than ten years, would complete the bar.' Hence, we suppose the court was of *246the opinion that although the survey, by virtue of the certificate, was inoperative to sever the land from the public domain,- or to confer any right upon the party claiming under it, beyond showing the extent to which he got possession by his-entry, yet ten years’ possession would give title, or bar any one subsequently acquiring it from the State.
If this was the idea intended to be conveyed, it is evidently erroneous. It is unnecessary for us to say that there is nothing in the decisions of this court to give countenance to the supposition that a grant of the public domain will be presumed from ten years’ possession. Nor is there anything in the statutes, or in the practice and usage of the State, in the granting of land, to authorize the inference that the State must eject trespassers, or recover possession of the public land from occupants, before it can make a valid grant or conveyance of it to other parties. The common-law rule, that the owner cannot make a valid conveyance of land in the possession of a disseizor, is not recognized with us as between individuals, and certainly it has no application to the granting of land by the State. It follows, as a necessary consequence, that a purchaser from the State will not be barred; for it would be tantamount to a denial of the title of the State or its right to convey, to say that the bar, though not directly applicable to the State, would take effect immediately on the title vesting in the purchaser or grantee' from it.
It is not to be understood, however, from what is here said, that when there is an existing title or claim to the land, against which limitation will run, that this title may not vest in the occupant by ten years’ adverse possession; or that when the title has been thus acquired by limitation, it caribe defeated by the original owners abandoning the location and survey, and causing the certificate to be re-located elsewhere.
The judgment is reversed and the cause remanded.
Reversed and remanded.