Roberts, Chief Justice.—This
case was advanced for a hearing out of its order, upon motion of appellants.
The assignment of error relied on was the error of the court in the third subdivision of the charge.
The propositions designed to raise the questions on this charge were too numerous and minute in the subdivision of the points of objection, and, as a consequence, caused the matters in the record, stated under each, to be too much detached and often repeated, instead of being combined under one or two propositions, that would have more forcibly and appropriately presented the grounds of objection which were really designed to be presented.
Those propositions, though raising the desired objections to the charge, might well have been presented in one, by adding together what, in substance, was contained in two of the assignments of error, with a small addition, thus: “ The court erred in instructing the jury that they might regard the statute of limitations of ten years’ possession as running against the State, and in favor of the defendant, prior to the issuance of the patent for the land to the plaintiff’s vendor) if the defendant had settled on the land in good faith, believing at the time that the title had passed out of the State, and that he had paid the taxes, and that such possession, claim, and payment of taxes were known to the State.”
Under this proposition, all of the leading facts might.have been stated, showing that the patent had issued on the 30th of August, 1873, and that plaintiffs’ chain of title under it was admitted to be complete; the possession of defendant from 1852; payment of taxes; the title under which he took possession tending to give notice that the land was vacant; the evidence, in substance, of Rhoads Fisher, tending to show that the land was vacant until said patent issued,—all of which matters were stated under one or the other of the several *257propositions. To this may be added, that the court charged the jury to find for the plaintiffs under their title, unless defendant was protected by the ten years’ limitation, of such character as is mentioned in the charge;, which was, first, that it would be no defense if the defendant knew that the land was vacant when he settled upon it; and, second, (the charge assigned as error,) “ But if you believe, from the evidence, that at the time of his settlement upon the land the defendant settled in good faith, and believed at the time that the title had passed out of the government; and if you further believe that the defendant, ever since his first settlement upon the land, has continuously resided thereon, and claimed and cultivated, used or enjoyed the same, unmolested by adverse suit, and that such possession has been peaceable, adverse, exclusive, and continuous, and that such occupancy has been in good faith, and that he has yearly ever since rendered the same for taxes, and has annually paid to the State and county all of the taxes thereon, from his first settlement, and that such occupancy and possession and claim of defendant and payment of taxes were known to the State; and if you further believe, from the evidence, that such occupancy and possession has been for a period of ten years next before the 25th of May, 1874,” (the date when the suit was brought,) “ exclusive of the time that elapsed between the 28th day of January, 1861, and the 1st day of April, 1870, then you will be authorized to find for the defendant.”
There was no further charge relating to the merits of the case, and this, and this alone, was that upon which the jury found a verdict for the defendant.
This mode of presenting the case for consideration has been adopted, in preference to considering in detail .the several propositions in the brief that would lead to the same result.
' The previous part of the charge expressly indicates this to be a charge upon the statute of limitations of ten years; and as such, in reference to the facts, of this, case,, it was certainly erroneous.
*258The statute of limitations does not run against the State. (Paschal’s Dig., art. 2393.) There was evidence tending to show that the land was vacant previous to the date of the patent issued on the 30th of August, 1873, the year before the suit was bought; and the fact that the patent then issued for the land, itself tended to raise a presumption that the land was vacant previous to that time. In this case, as in that of Smith v. Power, 23 Tex., 29, it was not shown how long the land was located before the patent issued; and it was there held, that if that fact was for the advantage of the person .who pleaded the statute of limitations, it was incumbent on him to show it. And in the same case it was said, that “ it is well settled, in a case like the present, that the statute does not commence to run against a party claiming under the government until the right accrues to the claimant.” Bow, if the statute of limitations cannot run against the State, as it is expressly declared by our statute, (Paschal’s Dig., art. 2393,) in connection with the article prescribing the ten years’ limitation, and if, also, it does not run against the plaintiffs until they acquired a title through the patent, it is not perceived how the defendant could possibly derive a title to the land by limitation of ten years, if the land was vacant nine out of the ten years preceding the day on which the suit was brought. (Wood v. Welder, 42 Tex., 410; Austin v. Dungan, 46 Tex., 245.) As a bar by limitation under the statute, it would not be aided by the good faith and claim .of defendant in settling upon the land, believing it to be titled land, and by his paying the taxes, and by the knowledge by the State of those facts, if, indeed, there was any way by which they could be made known to the State. The State is not certainly estopped by an}7 knowledge of such facts by any of its tax collectors or other officers. The statute of limitations of ten years confers title upon the naked possessor \yho holds adversely, without paying taxes, or any of the extraneous facts embraced in the charge. But as a charge upon the statute of limitations, as a statutory defense, it should have gone further, and required *259the jury to be satisfied that the State had parted with the title to the land before the commencement of the ten years during which the statute would run before the suit was brought, and let them thereby find a verdict in reference to all of the evidence before them tending to establish the fact that the land was vacant during nine of the ten years, as well as to the possession during the time of his settlement. If, on the other hand, it was designed .by this charge to allow the jury to presume a grant from the government by ten years’ possession, strengthened by the accompanying circumstances enumerated in the charge, still it was erroneous; because the doctrine of the presumption of a grant to land is not that the possession during ten or any number of years gives a title to land, as does the statute of limitations expressly, but that long continued possession may be evidence tending to prove that a grant from the government had issued at some former time, from-which defendant derived title, or which was then an outstanding title, adverse to that of the plaintiffs; and as there was evidence tending to show that there had been no title issued from the government, it should have been submitted to the jury distinctly, in order to constitute a defense, to determine that, from all the evidence before them, there had, at some time previous to the date of the patent under which the plaintiffs claimed, been a grant or patent issued to some one, or a valid location by a valid certificate had been made, by which the government had parted with its title to the land.
His deed, in 1852, from Baumgarten, showed that he contracted to pay for the land, except ten dollars advanced, only when a patent should be procured from the government. It was proved that a survey of the land was made in 1838 by virtue of a conditional certificate, to which no corresponding unconditional certificate had ever been issued, and applied to the survey; it was shown that defendant had never been presented with such a title; and it was shown that a patent had issued, under which plaintiffs claim, in 1873. In the *260case of Taylor v. Watkins, 26 Tex., 700, wherein there were facts not very dissimilar to these, it was said, by Justice Bill, that “ these were all circumstances tending to repel the presumption of a grant,.... and the court ought to have left it to the jury to say, upon the whole evidence, whether there has ever been a grant to the plaintiff or not.” By which is meant, whether or not there ever was in fact a paper title, in the shape of a grant, patent, or other tangible muniment of title, by which the title was conveyed from the government which at the time had the sovereignty of the soil.
In the case of Yancey v. Norris, it was held, that an abortive effort to obtain a grant, or a completion of it, from an incompetent officer, was a circumstance repelling the presumption of any grant having been made on that application. (27 Tex., 48. See, also, Sulphen v. Norris, 44 Tex., 204.)
Reversed and remanded.