We are not prepared to concur in the ruling of the Court of Civil Appeals that the certificate of the Commissioner of the General Land Office was properly admitted in evidence; but we are of the opinion, that the error in the admission of the evidence, if error it was, did not prejudice the rights of the applicant. The applicant was the plaintiff in the District Court, and sought to recover by showing that the land in controversy was public free school land and had been properly classified, appraised, and put upon the market, and that he had settled upon the same, made proper applications to purchase, *Page 5 and had tendered the cash payment and obligations required by the statute. The proof of these facts entitled him to recover, provided the land had not been previously purchased by an actual settler. But the trial judge found in his conclusions of fact that the defendant Powell had, previous to the plaintiff's application to purchase, become an actual settler upon the land, and had made application to purchase, and that the land had been awarded to him by the Commissioner of the General Land Office. It is expressly stated, however, in the findings, that this conclusion is based solely upon the certificate of the Commissioner, to the admission of which in evidence an exception had been taken. It was as to the introduction of this document in evidence that we have expressed a doubt as to the correctness of the ruling of the Court of Civil Appeals.
But the judge, referring to the certificate, adds in his findings the following: "I find from the other evidence that T.J. Powell was an actual settler in good faith on the land in controversy on January 22, 1901, the day he made his application to purchase, and has been such ever since that day." He also made this additional finding: "That the records of the county clerk's office of Jones County, show that the land had been originally classified as dry grazing land and put on the market at $1 per acre, and that said land had been sold to D.W. Godwin, and that said sale had been on February 2, 1901, canceled as illegal by the Commissioner of the General Land Office, and that said land had been sold to defendant Powell. This record in Jones County had been made as to cancellation of the Godwin sale on February 4, 1901, and the entry of sold to T.J. Powell was made either on that day or a few days thereafter."
Since the defendant was an actual settler upon the land and had made a previous application to purchase the same, we are of the opinion that, in order for the plaintiff to have prevailed in the suit, the burden was upon him to show that either the defendant had never completed his purchase or that he had in some manner forfeited his right before plaintiff made his application. This he failed to do.
The admission of the evidence being harmless, if erroneous, and there being in our opinion no other error in the record, the application is refused.
Application refused. *Page 6