Opinion.—From this statement of the. case it appears manifest to us that these assignments are not well taken, and that there is no error in the judgment. By the delivery of the two certificates, Wos. 353 and 358, to the surveyor for location, and the actual survey under them, for him, by the surveyor of the one thousand two hundred and eighty acres in one body, Inman acquired an inchoate right to the land. It was a valid appropriation of it, capable of being carried into a patent. So, also, by the location and survey of the other six hundred and forty acres for the estate of Alford, that land was appropriated to them. Howard v. Perry, 7 Tex., 275; Hamilton v. Avery, 20 Tex., 635; Hollingsworth v. Holshousen, 17 Tex., 43; Word v. Conner, 33 Tex., 568.
The mistake of the surveyor, in the application of his field-notes upon the return to the general land office, should not have the effect of divesting or changing the rights of the parties. Mor do we think could Alford’s heirs by reason of this mistake acquire any right to hold Inman’s land. It was a mistake which could have been rectified at the land office before the issuance of the patents, had it been discerned in time. Or even after the issuance of the patents the commissioner of the general land office could upon proper proof cancel the patents and correct the error. The issuance of the patent to them under the circumstances of the case, though it vested in them the apparent legal title, surely they cannot be permitted to enjoy the beneficial interests in the land without violating the plainest principles of equity. Doswell v. De La Lanza, 20 How., 29; Urquhart v. Burleson, 6 Tex., 511; Coleman v. Worley and wife, 3 Dana, 486.
Here the defendant, McDonald, in perfect good faith bought and paid for this land, without knowledge or suspicion of any flaw in his title, before the issuance of the patent, and perhaps before the mistake in the change of the certificates or field-notes had occurred; he had lived upon, the land for thirteen years before the institution of this suit without the least reason to think his title defective, rendering it for assessment year by year and paying taxes thereon; he has made permanent and valuable improvements; his possession has been public, open and continuous, and it is the very land which his grantor in 1872 had located, surveyed and become equitably entitled to hold. The form of the survey, the location of his improvements, is such as to preclude a division of the land. To divest him of his possession, would work to him irreparable injury. On the other hand the plaintiffs have and hold in undisputed enjoyment the very land which was located and surveyed for the estate of the ancestor. It is proven to be at least as reliable as that located for Inman. They have suffered no injury. It would be manifestly unconscionable to permit them to take advantage of the mere mistake of a ministerial officer, whereby the legal title became vested in them, to deprive the defendant of the land he had purchased
The'judgment rendered was the proper judgment to ren- ■ der in the court below, and it must be affirmed.