!. The point made by appellant in his brief, on the first assignment of error, is, that the petition shows upon its face that the land in controversy was not vacant, and hence that no cause of action was shown against Atkins, the surveyor. This point is not wefi made. The object of the suit was to declare the *548survey made by Atkins for Young null, and to command Atkins then to survey it for plaintiff. He was therefore a proper party.
2. The exception to the introduction of testimony fails to indicate upon what ground it was objected to, and will not therefore be considered. It is incumbent upon the objecting party to state the reasons why the testimony should not be received.
3. The charge of the court was an erroneous exposition of the law applicable to the case. If it were true that the location and survey of the land by' Young for himself before the 26th of May, 1874, conferred no right upon him in the land, yet it would not follow that the jury would be therefore warranted in finding for the plaintiffs. The proof shows the settlement on the land by O’Neal and wife in May, 1873, and that the land was then vacant. They had until the 26th of May, 1874 (under the act of May 26, 1873) to make application for it as a homestead, and have the same surveyed, and the field notes returned to the general land office. During that period the right to interfere with them “by file, location or survey, by virtue of any land claim whatever,” was prohibited by law. Pasch. Dig., art. 7048. But, having suffered the twelve months given them by law in which to pre-empt the land to elapse, they no longer preserved any right to it. It was subject to location by any one having a valid certificate, or to settlement under a pre-emption claim. The case was not altered by the fact that they were ignorant that the land was vacant, nor could their intention to claim it at some future day, when ascertained to be vacant as a homestead, affect the construction of the statute. Their occupancy dated from the passage of the law. The land was vacant whether they knew it or not, and after the lapse of twelve months from the 26th of May, 1873, they could possess no legal or equitable rights or claims respecting it as against another locator or pre-emptor, or *549party in possession. Cravens v. Booth, 17 Tex., 243; Jennings v. De Cordova, 20 Tex., 513; Teel v. Huffman, 21 Tex., 781; Linney v. Kohlhass, 26 Tex., 332.
And so, although Young’s location in December, 1873, as against O’Neal and wife, was of no avail, yet after the expiration of the period when they could have acquired a title to the land as a homestead, there was no necessity of a resurvey by him. As between him and the government, and all other persons than O’Neal and wife, his file and survey in December, 1873, was a valid separation of the land from the public domain, and O’Neal and wife, by neglecting to set up their claim within the time limited by law, have lost their right now to question it. Teel v. Huffman, 21 Tex., 781; Woods v. Durrett, 28 Tex., 429.
4. The charge asked by the defendant, if we are correct in these views, was applicable to the case and should have been given.
5. That the testimony did not wairant the verdict and judgment, we think is also apparent, and consequently that a new trial should have been granted.
The testimony does not disclose any other contract upon the part of Young with O’Neal and wife, than simply to take care of the premises and other property for them and deliver it to them upon their return. The notification to him that if the land proved to be vacant they would file upon it and pre-empt it, imposed no obligation upon him which would deprive him of the right to acquire it for himself should their right lapse. He did not undertake to, nor could he pre-empt it for them. Nor did they lose their right to carry into a more perfect title their incipient right by virtue of their settlement on the land, though ignorant that it was public domain, in consequence of their temporary absence. Upon their return they had ample time, and they could still, by taking the proper steps to dispossess Young and vacate his file upon the land, have matured their claim into a title. . They *550were apprised as early as January that Young claimed the land as his own. They suffered six months thereafter and nearly two months beyond the twelve months allowed them by law to file their claim, to elapse before taking any steps to assert it. The proof does not show that they were hindered or delayed by any acts of Young. The case of Thornton v. Murray, 50 Tex., 168, may seem to militate with these views, but the circumstances of that case were peculiar. There the land had been settled by Bishop and surveyed for him, and the field notes recorded. It had been the homestead of Bishop and wife and was such when they separated. Mrs. Bishop sued for divorce, and in the suit recovered judgment for the land. During the pendency of that suit, one Thornton took possession of the land under color of a pre-emption claim. It was at the time constructively in possession of Bishop and wife. There was cotton in the fields unpicked, cotton in the cribs, their stock running on the place, the houses locked up and fastened. There were twenty-five acres cleared and fenced, with dwelling house and outhouses. Thornton appears to have taken advantage of Bishop’s fleeing from the county, and Mrs. Bishop’s desertion by her husband, ■wrongfully to enter upon the land, when it was in fact in the actual occupancy of renters from her husband, and while she was asserting her claim to the homestead.
She had been chargeable with no laches in the assertion of her claim, and it was only by Thornton’s wrongful act that she was kept out of the actual possession. In the present case, O’Neal and wife, except making demand in January, 1814, on their return after an absence of six months, upon Young for possession, made no effort to regain it, or to secure their claim to the land, until 18th July, 1814, 'when they applied to the surveyor for a survey of the land, nor on his refusal to survey it, did they institute suit until 14th October. This was not the exercise of such diligence in securing the bounty of the gov-*551eminent as should entitle them to the like measure of relief, which in the Thornton and Murray case was extended to Mrs. Bishop.
6. While the policy of the state has always been to favor the actual settler and to provide homes for the homeless, our legislation, statutory and constitutional, shows also by the frequent and urgent provisions for the return of field notes, that the settlement of floating and unfixed claims to lands, and the ascertainment definitely of what lands remained open to settlement, was no less a subject of legislative regard. It assuredly was not contemplated, that one who settled upon the public lands for the purpose of acquiring a homestead thereon, while disregarding the provisions of the law requiring the filing of his application and the survey and return of the field notes within the limited time, should yet preserve aright to claim it, and to withhold the land from settlement and location by others indefinitely. We think that would be the assertion of an equity in contravention of the law.
We are of opinion that the proper disposition of this case is that it be reversed and remanded.
Reversed and remanded.
[Opinion delivered March 15, 1881.]