This was an action of trespass to try title, and was originally brought by the defendant in error to recover three quarter sections of land. There were several defendants in the original petition; but the plaintiff was not there made a party. However, by an amended petition filed December 12, 1887, he was made a defendant. The plaintiff filed her fourth amended original petition December 10, 1889, in which she dismissed as to all the defendants except Oscar Thompson (the plaintiff in error) and restricted her suit to a recovery of one quarter section only. The defendant thereupon disclaimed as to all the land sued for except a specific tract of 9 733-1000 acres, described in his answer by metes and bounds. As to the land claimed by him he pleaded not guilty and the statutes of limitations of three, five and ten years. The action thus resolved itself into a suit to recover this small tract of little more than nine acres.
Upon the trial, the plaintiff introduced in evidence a patent from the State to herself as assignee of one J.A. Brooke to the land described in her last amended petition. This patent was dated November 6, 1889. *Page 208 The patent showed by its recitals, that the land had been purchased by Brooke as school land under the Act of April 24, 1874; that the purchase money had been fully paid, and that Brooke had transferred his title to the patentee December 9, 1884. The plaintiff then rested.
The defendant introduced in evidence Brooke's application to purchase the quarter section, which was dated February 26, 1877; and it was agreed that the land was sold to him by virtue of his application, and that his obligation to the State for the unpaid purchase money was dated May 30, 1877. Defendant also introduced a deed to himself from one Burks to the 9 733-1000 acres of land claimed by him, dated October 11, 1892; also a deed to the same land to Burks from one Nunn, dated February 12, 1881, together with testimony showing that one Hardee took possession of this tract in May or June, 1877, and built a house and other improvements thereon, and that he lived there until the spring of 1878, and that when he left Nunn took possession. There was also testimony tending to show that Nunn had purchased the land from Hardee. The defendant also made proof of circumstances for the purpose of showing that Hardee had bought the land from Brooke at the time he took possession and improved it. But no writing evidencing either a conveyance or contract of sale from Brooke to Hardee or from Hardee to Nunn was introduced. There was also evidence tending to show continuous adverse possession on part of Hardee, Nunn, Burks and defendant Thompson from the time of Hardee's first occupancy until the defendant was made a party to the suit.
The court instructed a verdict for the plaintiff. On appeal the Court of Civil Appeals first reversed and remanded the cause, but upon motion for a rehearing, affirmed the judgment.
We are of the opinion that the court erred in instructing a verdict for the plaintiff. Since the judgment will be reversed and the cause remanded, we must forbear a discussion of the evidence. A conveyance of land may be established by circumstantial evidence (Bounds v. Little, 75 Tex. 316 [75 Tex. 316]); and we deem it sufficient to say that in our opinion the evidence adduced by defendant tending to show that Brooke had sold the land to Hardee, was such as to require a submission of that issue to the jury.
The Court of Civil Appeals in their first opinion held in effect that the trial court did not err in refusing to submit the question of a sale; but that there was evidence tending to support the plea of the statute of limitation of ten years, which required that that issue should have been left to the determination of the jury. However, upon a rehearing they held that in no event could the defendant hold any of the land claimed by him except so much as he actually occupied, and that since the evidence did not show how much of the land was inclosed by Hardee and his successors in the possession, the court did not err in instructing a verdict. We think that the ruling of the court, to the effect that the defendant under his plea of limitation of ten years could only hold so much of the land as was actually occupied by him and those under *Page 209 whom he claimed, was correct; but we are also of the opinion, that the evidence tended to show that the dwelling house was so continuously occupied, and that therefore as to the land at least upon which the house stood he was entitled to a judgment, provided the jury upon a proper submission of the issue had found that there had been adverse and continuous occupancy for ten years before defendant was brought into the suit.
The other questions in the case are not likely to arise upon another trial and need not be discussed.
For the error of the trial court in instructing a verdict for the plaintiff, the judgments of that court and of the Court of Civil Appeals are reversed and the cause remanded.
Reversed and remanded.