The appellant, under the previous decisions of this court, could not, under his pre-emption claim, avail himself of the three years or five years’ statute of limitation. "No right of pre-emption could be acquired in land already held by a private individual under a patent, or a location and survey upon which he was by law entitled to a patent. Such pre-emption right can only attach to an actual occupation, in accordance with the provisions of law, of vacant land belonging to the state, and" subject to pre-emption. Sutton v. Carabajal, 26 Tex., 500; Buford v. Bostwick, 58 Tex., 63.
The previous location and survey made by virtue of the W. L. Mann certificate was legal and proper. The certificate ivas in the surveyor’s hands when the location and survey was made, and was duly returned to the land office, and there remained, except during the short period of time in which it was, no doubt, by the authority and under the direction of the commissioner of the general land office, filed in the office of the commissioner of claims, for examination and approval.
We do not think any of the many objections to the validity of the original certificate issued to Mann, or to the survey or patent issued by virtue of it, are well taken.
Though the conditional certificate was not in the general land office (1 vol. Pasch. Dig., art. 4309), yet the recitals in the body of the unconditional certificate show that it was really issued by the board of land commissioners on sufficient proof. This proof, after such a lapse of time, we must conclusively presume was that of the two credible witnesses required by law, and complied sufficiently with the provisions of art. 4310, vol. 1, Pasch. Dig., p. 717, and dispensed, under the circumstances, with the necessity of the further proof that the conditional certificate was actually in the general land office. These views are well sustained by authority. Hanrick v. Jackson, 55 Tex., 32; Gullett v. O’Connor, 54 Tex., 416; Johnson v. Eldridge, 49 Tex., 507; O’Neal v. Manning, 48 Tex., 407; Todd v. Fisher & Miller, 26 Tex., 240.
Were this not sufficient (as we feel sure that it is) to establish the genuineness and legality of the certificate in question, we are of opinion that it is rendered good by the first section of the act of *280December 15, 1859, providing for the issuance of patents on all genuine headright certificates not previously presented to the commissioner of claims for approval. 1 vol. Pasch. Dig., art. 1148.
It is true that the record shows that this headright claim was presented to the commissioner of claims for approval, but as he neither approved or disapproved of it, by this act it was placed practically on the same footing as other genuine headright claims that had not been passed on by him. This presents an entirely different case from that of Durrett v. Crosby, 28 Tex., 688. In that case the certificate had been disapproved by the commissioner of claims, and the petition prayed for a writ of mandamus against the general land office.
The law provides that all genuine headright certificates, like the one under consideration, that have been legally issued and propérly reported to the proper officers, shall be recognized, and patents be issued on them. In this case the patent was lawfully issued, and vested the fee to the land in suit in the patentee, under whom the appellee holds.
The district court also decided that the use and occupation of the land was equal in value to the improvements, and therefore allowed appellant nothing for them. To this decision he objects, because it was proved that appellant paid all the taxes due on the land in suit, regularly, and there was no proof made by appellee that he paid any taxes.
On this subject this court has held that, in order to defeat the plaintiff’s claim for rent by proof of the plaintiff’s failure to pay taxes, the defendant must not only show that he has actually paid all taxes, but also show affirmatively by proof that the plaintiff has failed to pay them.
The mere absence from the record of all evidence whatever on the question as to whether the appellee paid the taxes on the land in question, or not, does not afford the slightest presumption in law that he has not in fact paid all the taxes regularly. Pope v. Davenport, 52 Tex., 221; Miller v. Brownson, 50 Tex., 597.
There is no error in the judgment, and it is affirmed.
Affirmed.
[Opinion delivered April 20, 1883.]