When Cagle sold his interest in' the preemption to Shackleford, and removed to the state of Arkansas, he thereby abandoned all right and claim to the same. And as Shackleford then owned and was occupying another homestead, he acquired no right to the pre-emption. Upon his pretended purchase, and the removal of Cagle from the state, the pre-emption right was forfeited, and the land became unappropriated public domain, and subject to settlement, location and survey. Gambrell v. Steele, 55 Tex., 585.
Appellees do not claim to have thereafter pre-empted the land, but they claim to have secured the right by purchase from the asr signee of Shackleford, and a transfer by Cagle some three years after he had sold and abandoned the pre-emption. Evidently, as Shackleford acquired no right by reason of his pretended purchase from Cagle, no one could derive any right through him; and as Cagle had abandoned the pre-emption three years before his written transfer to appellees, they acquired no right by reason of that transfer. Under the facts as presented by the record, the land was unappropriated public domain at the time Hewby pre-empted the same, August, 1874; and as it appears that appellant secured Hewby’s right by purchase and assignment, and having taken and held the possession of the same until dispossessed by the appellees, he thereby establishes the superior right to the land. The patent to appellees having been issued on an abandoned pre-emption and without authority of law, is invalid.
Upon a review of the whole case, we conclude that the judgment ought to be reversed, and.that the supreme court now here render such judgment as should have been rendered by the court below; that is, the patent to appellees be canceled and held for naught; that appellant have and recover possession of the land described in the petition; that a writ of restitution issue in his behalf,, and that he be confirmed in his pre-emption right to the said land, etc.
¡Reversed, ato rendered.
[Opinion approved June 8, 1883.]