The appellants and plaintiffs instituted suit in the District Court, alleging that on the 10th of October, 1856, being the owners of a good, legal and genuine land certificate, they located a portion thereof upon 520 acres of land in the county of Burleson, and land district of Milam, which was surveyed by a surveyor of Milam land district on the same Jay; and on the 30th of September, 1857, the certificate and field notes were filed in the general land office, duly authenticated according to law.

That the defendants, on the 5th of August, 1857, also having a certificate, pretended to locate and have surveyed the same land, and on the 7th of September, 1857, they filed their field notes in the General Land Office, and obtained a patent for the same on the 18th of May, 1857.

The petition charges the defendant, as well as the commissioner of the General Land Office, with fraudulent and illegal acts and intentions, and seeks to annul the patent, and to have .a judgment for the land.

The defendants demurred generally, and pleaded not guilty, .as well as a general denial of plaintiffs’ allegations.

The cause was submitted to the judge, waiving a jury, who, .after hearing the evidence adduced, and argument of counsel, was of opinion that the law of the case, as applicable to the facts, was with the defendants, and that defendants go hence and recover costs, etc.

Whether the judge intended by saying “ the law of the case, .as applicable to the facts, was with the defendants,” to sustain *192the demurrer, or whether he treated the demurrer as waived,, is doubtful. As it nowhere appears that the defendants did not waive and virtually withdraw their legal exceptions to the petition, it is presumed that the judgment of the court was-upon the demurrer, although the record discloses a statement of facts, and we shall first examine the pleadings of plaintiffs-as to tlieir legal sufficiency.

"We have already stated the substance of the petition, but for greater certainty we will add that it no where appears that the-field notes had been examined and recorded and certified to the commissioner of the general land office by the county 01-district surveyor, agreeably to the acts, (Art. 4522) unless all this is to he inferred from the expression that they were u duly authenticated according to law.” But as the deputy or practical surveyor was required to subscribe the names of his ehaincarriers to his field notes, as well as the class of lands surveyed, (Art. 4533) and as he is the only surveyor mentioned as Laving-anything to do with the field notes, this authentication may with propriety he meant to include that required by the deputy surveyor; and in that case the petition is defective in not showing that the plaintiffs had done their legally prescribed duties f'01* obtaining a patent.

But should we even admit that the field notes were alleged to he authenticated by the district surveyor according to law, the expression would be liable to criticism for stating legal inferences, instead of facts from which the court should draw legal inferences. The petition should state facts, which, if admitted or proved, would enable a court to decide upon their legality, as well as to make a proper judgment or decree thereon. These remarks also apply to that part of the petition which states that plaintiff “ located ” the certificate upon the land in controversy. Whether the certificate was properly and legally located, would depend upon what was done, and to he decided by some other tribunal than the plaintiff.

If the location of the certificate was such a location as was required by the statutes, it was an appropriation of the land, *193and any subsequent survey of the same land by a third party, adverse thereto, would be illegal and nugatory, provided the owner of the certificate so located was not liable to the charge of neglect of duty in perfecting his incipient rights into a legal title or patent.

We believe the judge did not err in sustaining the exceptions of defendant to plaintiffs’ petition, but the proper judgment to have been entered was that the plaintiff have liberty to amend his petition. And lest injustice irreparable may be done, we shall remand the ease, that the parties may have an opportunity to amend the pleadings, if they choose so to do, and such action be liad thereon by the District Court as may seem proper.

ON APPLICATION FOB BEHEABING.

In the application for a rehearing the counsel for appellant state, that the court is mistaken in saying “ that it nowhere appears that the field notes had been examined and recorded and certified to the commissioner of the general land office by the county or district surveyor,” agreeably to the acts. (Art. 4522.)

The counsel refer us to the certificate of the commissioner of the general land office on the ninth page of the record, where this fact is alleged to appear.

The statutes, Article 1427, is explicit in stating the requisites of a petition, one of which is “ a full and clear statement of the cause of action, and such other allegations, pertinent to the cause, as he (the plaintiff) may deem necessary to sustain the suit.”

Papers referred to as evidence cannot be considered as a part of a petition. The statement made by the pleader, that these papers are a part of the petition, does not make them such, because the petition in itself, without any reference aliunde, “ must contain a full and clear statement of the cause of action,” and all “ allegations pertinent to the cause as are deemed necessary to sustain the suit.”

*194In Jennings v. Moss, 4 Tex. 452, and Gray v. Osborne, 24 Tex. 158, this court said that “ the plaintiff must show to the court a good cause of action by appropriate averments in the petition; these averments must be of the facts which constitute the cause of action in the case, and not merely statements of the evidence by which the cause of action, if stated, might be maintained, or of conclusions derived from the evidence.”

We must look to the statements and allegations in the petition to ascertain the cause of action. If all the statements and allegations are admitted by the answer, or if it appears to the court that, by their admission, the plaintiff has no cause of action, it is unnecessary to look to the papers relied on as testimony, because the “ allegata ” must precede the “probata.”

But even if we were at liberty to consider as a part of the petition that portion of the records of the commissioner of the land office to which the petition refers, we should still find the same defect stated in the opinion, since the petition refers only to records for a “ description of the land located,” “ the certificate,” “the date of the survey,” and “ the filing the same in the Land Office,” and does not refer to the Land Office document to show that the county surveyor had done anything with the survey.

The other position taken in the application for a rehearing, to show the error of the court for remanding, we consider well taken. By Article 1562, we are not permitted to remand the cause to the District Court, “ except when it is necessary that some new matter of fact be ascertained, or damages to be assessed, or the matter to be decreed is uncertain.” Since the plaintiff insists that the judgment of the District Court was a final disposition of the case upon both law and facts, aud that the plaintiff, neither in the district or this court, desires to amend his pleadings, the judgment will be so changed and modified as to affirm the judgment of the District Court.

It seemed to us, in preparing the opinion, that a general -exception to the petition was so appropriate, that we felt bound *195to construe the judgment as authorizing the demurrer, particularly as it also appeared that the plaintiff had not made such a full statement of his cause of action as he was able.

Rehearing refused and judgment affirmed.