The first assignment predicates error on the part of the court in overruling the special demurrer of limitation to the petition. According to the allegations in the petition, Lamar county ousted appellee from the actual possession of the land on August 1, 1911, after the decision and judgment of the Supreme Court on May 24, 1911, in the appeal of the cause of Lamar county against appellee, which finally decreed title to the land to be residing in Lamar county, and made evident the want of any title in appellee. The effect of the allegations is to show an actual eviction of appellee from the land on August 1, 1911, and a complete legal failure of title in appellee, claiming under deed from appellants relating to the time of such conveyance, as finally determined by a contest in the courts under judgment of the Supreme Court on May 24, 1911.
It is laid down as a rule that the statute of limitations against an action on the breach of a covenant of warranty of realty does not commence to run until an eviction, actual or constructive, under a superior outstanding title. Jones v. Paul, 59 Tex. 41; Westrope v. Chambers, 51 Tex. 178; Clark v. Mumford, 62 Tex. 531; Alvord v. Waggoner, 29 S.W. 797; Wood on Limitations, § 173.
And whatever may be said concerning the ultimate fact that Lamar county was the superior owner of the land as a part of her public school lands, and about limitation not operating as in similar suits against private individuals, we think that in the instant suit limitation should not be held to have run against the suit on warranty of title against appellants until after the alleged eviction and failure of title. For the facts pleaded show, when properly construed, that the parties were dealing with each other about the land as being "in the headright of J. J. Nidever," and were not undertaking to contract about school lands belonging to Lamar county; and if there was any conflict of title or location of the land as between the Nidever survey and Lamar county school land, as we must presume from the facts, it was upon such facts and law as to require the courts to determine the rights of parties, and hence limitation began to run against the warranty of title only from the final judgment of the Supreme Court as pleaded, and not from the date of the deed or date of filing of the suit. Alvord v. Waggoner, 29 S.W. 797, approved by Supreme Court on limitations; Eustis v. Fosdick, 88 Tex. 615, 32 S.W. 872; Williams v. Finley, 99 Tex. 468, 90 S.W. 1087; Trevino v. Cantu, 61 Tex. 88 : Sievert v. Underwood, 124 S.W. 721. Reference: Seibert v. Bergman,91 Tex. 411, 44 S.W. 68.
The second assignment, which is the only other assignment, cannot be considered, for the motion for new trial does not contain such assignment.
The judgment is affirmed.