majority">Gaines, Associate Justice.

This was an action of trespass to try title brought by appellant as the executrix of the will of Calvin J. Fuller, deceased, to recover two tracts of land lying in Fannin County which were located and patented by virtue of a certificate granted to one Thomas Stalcup for 2910 acres of the public domain. On the 4th of August, 1845, Stalcup conveyed to Bice Smith and Hugh Braley each an undivided interest of 756-|- acres in the certificate, and on the same day a like interest to W. T. Braley and Eli Merrill jointly. Subsequently Hugh Braley located his interest in the certificate, but neither his rights nor the land located by him are in any manner involved in this controversy. The remaining 640 of the certificate was conveyed by Stalcup to C. J. Fuller after the location of the land in controversy, and was located by him on a tract of land in Grayson County.

It is conceded by both parties that neither that transfer nor location in any manner affects the merits of this suit. The testimony shows that Bice Smith died in 1844, which is presumed to be a mistake, since the transfer of Stalcup to him is dated in 1845. He left a widow and children. His widow conveyed her interest in the certificate, amounting to 3781- acres, to C. J. Fuller on the 18th of March, 1854. Fuller acquired no other interest in the certificate until the lands in controversy were located. On July 17, 1854, he located the certificate upon the 304-acre tract in his own name as assignee. On April 30, 1855, he located the other tract in controversy in the same manner. The field notes of the latter survey in the surveyor’s office recite that the survey was made for “ Calvin Fuller, assignee of Thomas Stalcup.” In the copy of the field notes of this survey filed in the General Land Office the words “Calvin Fuller, assignee of” appear to have been originally written but to have been crossed out. These field notes were filed in the General Land Office May 12, 1855, and on April 22, 1857, the transfer of 756f acres of the certificate from Stalcup to W. T. Braley and Eli Merrill was filed in the General Land Office with the field notes. On the 28th of June, 1871, patents were issued to both tracts in controversy to W. T. Braley and Eli Merrill, as assignees of Thomas Stalcup. The defendants claimed under Braley and Merrill. After the land in controversy was located Smith’s heirs conveyed their interest in the land to Fuller. The cause was sub*338mitted to the court without a jury and judgment was rendered for the plaintiff for the tract of 304 acres and for the defendants for the tract of 452f acres. The defendants have not appealed, so that only the title to the latter tract is now in question before us.

The trial judge in his conclusions found the facts substantially as detailed above, and his findings of fact are not excepted to. • It is however complained that the court erred in concluding that the location of the tract of 456f acres was made for Braley and Merrill, and that the plaintiff was not entitled to recover it. We think however there was no error in the court’s ruling. It must be borne in mind that the defendants had by virtue of the patent issued to Braley and Merrell the legal title to the land. The evidence by which it was sought to establish the plaintiff’s equity consisted mainly in the fact that the field notes in the surveyor’s office recited that the survey was made for Fuller as assignee. At the time of the survey Fuller had only an unlocated balance of 74^- acres in the certificate, hence it could not have been made wholly for him. The fact that when the field notes were filed in the Land Office his name was stricken out would indicate that he was not claiming anything under the survey. It is true there is some evidence tending to show that he said he made the survey for “ some heirs,” but he did not say the Smith heirs. There is also some evidence tending to show -that he may have at one time intended to pay tax on the land, and that it was known as the Fuller land after he took a conveyance to it from the heirs of Rice Smith. Indeed his purchase from these heirs tends to show that he thought the survey was made for them.

But we are of opinion that after this long lapse of time in order to overturn a legal title the evidence adduced to establish the equitable claim should be clear and convincing. If we were permitted to disregard the fact that the land had been patented to the ancestors of the defendants for more than ten years before the suit was brought we might conclude that the weight of the evidence showed the location was made for Smith’s heirs, and not for Braley and Merrill, but as the case is presented to us we deem it only necessary to say that the evidence adduced by the plaintiff is not sufficient to prevail against the clear legal title to the land which is shown to be in defendants by the patent from the State.

There is no error in the judgment and it is affirmed.

Affirmed.

Delivered June 14, 1889.

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