A judgment should have been
entered in the court below on the disclaimer of the defendant Allan. The failure, however, to do this, was a mere formal defect, which can work no injury to the real parties to this controversy. Subsequent to the filing of his disclaimer, Allan was seemingly treated and regarded by the parties and the court as no longer a party, and the case proceeded to trial and final judgment between the real parties, without further notice to him. Under these circumstances, we think we are authorized by former decisions of the court to regard the action as dismissed or discontinued as to him, notwithstanding the failure of the record to show this in express terms. 8 Tex., 124; 5 Tex., 139.
We concur with the court below that the title to the land in controversy under the location, of the Rollins and Scott certificates, was superior to that shown by appellee. Admitting that the law did not at the date of these certificates authorize the issuance of unconditional certificates unless the conditional certificates had been previously issued, which, however, we are not now called upon and do not undertake to decide, this objection to the certificates was obviated by the subsequent law allowing this to be done, by the approval and recommendation of the certificates for patent by the board of commissioners appointed under the act to detect fraudulent certificates, and to provide for issuing patents to legal claimants, and the act of Hay 12, 1846, authorizing the commissioner to issue patents upon unconditional certificates.
Uordid the repeal of this last mentioned act (if indeed it was repealed by article 1135, as claimed by appellee) in any way affect the validity of the location, survey and *416return of these certificates. The right to appropriate public land under these certificates, became, by their location, survey and return to the general land office, vested before the repeal of the act authorizing their patent. And this vested right had never been forfeited or annulled, but, on the contrary, seems to be recognized and protected by section 2, article XIV of the constitution of 1876. If further legislation is necessary to the issuance of patents upon them, this may be had whenever it suits the pleasure of the legislature to supply it. The mere delay or failure of the legislature to legislate on the subject, does not forfeit or annul the rights secured to the parties entitled to the certificates by their location and survey, and gives no additional strength to a patent upon a subsequent unauthorized location of the land by another party.
I also concur in the opinion of the court below, that while the subsequent location of the land by the party under whom appellee claims, was unauthorized, and the commissioner was forbidden by the constitution from patenting it upon such location, still the patent when issued is not absolutely null and void. It is voidable, or as it is often phrased, void, as to those having a prior and superior equitable right to the land. It may be cancelled and annulled by or at the suit of the party having prior equitable title to the land, and a new patent issued in lieu thereof to him. Or the legal title vested by such patent may, by a court of equity, be divested out of the patentee, and vested in the holder of the prior and better equitable light. But as the patent is not void in the strict and absolute sense of the word, I think with the court that it is well settled that none but such as appear in some way connected with, or hold and claim under the prior equitable title, can impeach the patent or resist a recovery of the land by the patentee, by . reason of the superior equity of the prior locator. Portis v. Hill, 14 Tex., 69; Burleson v. Burleson, 28 Tex., 383; Shields v. Hunt, 45 *417Tex., 424; Johnson v. Timmons, 50 Tex., 521; Fitch v. Boyer, 51 Tex., 336.
But conceding the correctness of the conclusions of the court below upon the question of law on which it based its judgment, we cannot concur with it in its application of them to the case presented by the record. On the contrary, we think the facts are amply sufficient to entitle appellant to rely upon and show the superior equitable title to the land acquired by the location and survey of the Rollins and Scott certificates over the legal title of appellee. In 1850, at the date of the surveys, the certificates were in the possession of D. 0. Osborn,- for whom (so the field notes show) they were surveyed, and who, we are authorized to infer, paid for the survey, and caused the return of the certificates and notes of survey to the general land office, for himself or those he represented. The certificates until location were personal property, and were subject to transfer or sale by parol. Or the better title to them may have been acquired by open, notorious, adverse claim, brought to the knowledge of the previous owner, by limitation. Or an interest in the land may have been acquired by a parol contract for their location. The appellees were in possession of the land at the institution of the suit, holding, claiming and enjoying it under a regular chain of conveyance from Osborn, and though something more than thirty years had elapsed from the date of surveys and return of the field notes to the general land office, and forty years from the issuance of the certificates to the trial of the suit, neither the land or certificates seem ever to have been claimed by Rollins or Scott, or any one else in their right except Osborn, and those claiming under him. Conceding the length of actual occupancy by appellees may not have been such as to give title by prescription, or bar an action for the land, still the facts are amply sufficient to warrant the presumption, if not of absolute title to the land, at least against a stranger, that *418appellees were in possession for, or in right of, and with the consent of the true owners, or some of them, of the land. And if such was the fact, they had the right for the protection of their possession to show the superiority of the equitable title under which they were holding over the legal title of appellant. Wright v. Thompson, 14 Tex., 558.
The judgment is reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered February 4, 1881.]