¶1delivered the opinion of court.
¶2This suit was brought by the appellant to recover a tract of land. The plaintiff read to the jury the record of the survey- or’s office for the county of Red River, for a survey made for Roger McCown, under which he claimed by purchase, under an order of sale made by the probate court to the administrator of McCown.
¶3*375There was a good deal of other testimony, but as the statement of facts shows that the certificate was not produced as evidence, showing the right under which the survey was made, it is not material to notice it.
¶4There was a bill of exceptions to the opinion of the court, taken by the plaintiff’s counsel to the admissibility of the defendant’s testimony. Whether the judge erred or not, in admitting the testimony on the part of the defendant, cannot affect the result, as the plaintiff had not made out title, and the testimony offered by him ought to have been rejected. The 23d section of the act of limitations of 1841 authorizes suits to be brought on a certificate of headright that had been surveyed. The plaintiff offered the survey in evidence without producing the certificate, nor does it appear that he made •any attempt to account for its absence.
¶5The certificate ought to have been produced, as it may not have been valid. And he should have shown that the land had been surveyed according to law. Without affirming the opinion of the court below on the admissibility of the defendant’s evidence, we have no hesitation in affirming the judgment. ....