Opinion.— The rule laid down in Johnson v. Eldridge, 49 Tex., 507, is decisive of this case upon the evidence in the record. It is held in that case that the patent carries with it a prima facie right to the land thereby granted by the state to the patentee, and to rebut such a presumption it devolves upon' the adverse claimant to clearly establish a prior or superior equitable right; the burden being upon the plaintiff, even under the ordinary rule of law applicable to actions of this kind, to establish a perfect and valid title, or, at all events, to show a right sufficient to recover the *486land and superior to the defendant’s right. The weight of that burden is increased when he is met by the defendant’s .apparently perfect' title. The simple fact that his field-notes had been returned at some time or other does not meet the exigency. Sixteen years had elapsed since the survey was made under which plaintiff claims, before the field-notes are shown to have been in the land office.
The presumption which would ordinarily attach to finding the field-notes at a proper place of deposit, i. e., the land office, at a date subsequent to August 31,1853, it may be conceded, would be for some purposes that they were' duly filed at the proper time, in the absence of other proof, "and upon such state of case creating a presumption that the land had been treated at the land office, after August, 1853, as vacant public domain, and that the commissioner had patented- to an adverse claimant of the land. The presumption that the field-notes had been returned and filed in due time is neutralized by another presumption, not less forcible, that the officer whose duty it was to ascertain and know whether the land in question was vacant or not, acted upon proper information before treating it so, and accepting a file thereon and issuing a patent therefor.
It devolved upon the plaintiff, therefore, to show clearly that he had made such due return of his field-notes, and failing therein, the judgment was correctly rendered for the defendant. The correctness of the construction of articles 7096 and 7097, P. D., by the commissioner of the land office, that the withdrawal of the certificate from the land office, in order to locate the balance of the certificate, and failing to return the same within the time limited for the return of certificates, vacated the survey which had been made by-virtue of it, and under which the plaintiff claims, was immaterial if for any legal reason whatever the plaintiff was not entitled to obtain a patent.
On the trial of this case he assumed the task of showing that he was so entitled, and in our opinion he failed to do so.
Judgment aeeikmed.