On April 11, 1898, plaintiffs in error instituted this suit in the District Court of McLennan County, against the defendants, in form of trespass to try title to recover a part of a league and labor of land situated in that county and patented in the name of Jesse Russell. The evidence established the following facts:
Jesse Russell and Jane Russell, his wife, were residing in Texas prior to 1838, and on the 6th day of February of that year the Republic of Texas issued a headright certificate for one league and labor of land to Jesse Russell. In 1847 Jesse Russell died, leaving surviving him his wife, Jane, and four minor children, to wit: Silvester F., Sarah Jane, Margaret B., and William T. Russell. At some time prior to 1850 Jane married H.H. Hill. The certificate which had been granted to Jesse Russell had not been located, but was lost, and in the year 1850, Jane Hill, joined by her husband H.H. Hill, acting for herself and for her four minor children, entered into a contract in writing with J.K. Williams whereby the latter agreed to find the certificate and at his own expense to locate it and secure a patent for the land, for which services he was to receive one-half of the land. Williams found the certificate, located it in McLennan County, and procured a patent for the land in the name of Jesse Russell and his heirs in the year 1854. Mrs. Hill having sold her interest in the survey to King, joined with her husband *Page 535 H.H. Hill, on January 2, 1854, in dividing the league and labor of land into two parts, and in pursuance of her sale made to Williams and in fulfillment of her contract with him for locating the land to the extent of her interest in same, conveyed to said Williams the southeast half of the said league and labor of land. No question is raised in this case as to the validity of the division made between the children and Mrs. Hill, nor with regard to the title to the half thus conveyed. Assuming to act for her children as their guardian, Mrs. Hill, joined by her husband, acting with J.K. Williams, divided the other half of the league and labor of land into two parts, one containing 1000 acres and the other the remainder of the half league and labor.
On the 17th day of December, 1868, Margaret Martin, born Russell, joined by her husband, and W.T. Russell conveyed their undivided interest in the league and labor of land to Green B. Stone; and on the 27th day of April, 1874, Green B. Stone joined by other parties, who do not appear in the chain of title, made bond for title to the land in controversy, describing it by metes and bounds, to L.D. Spight, under whom the present defendants claim title.
On the 7th day of July, 1856, J.K. Williams attempted to convey the 1000 acres to James P. Ellis by a deed in which the description is so indefinite as to make its validity as a conveyance very uncertain. March 29, 1875, James P. Ellis instituted suit in the District Court of McLennan County against the heirs of Jesse Russell to recover the 1000 acres, and during the pendency of the suit Ellis conveyed the land by deed of gift to the plaintiffs in error, and died, and thereafter, on the 18th day of November, 1889, plaintiffs in error made themselves parties to the suit instituted by Ells, by an amended petition in the form of an action of trespass to try title in which the following persons, all of the heirs of Jesse Russell, were made defendants, to wit: S.F. Stone, widow of Green B. Stone, and the minor children of S.F. and Green B. Stone; Margaret B. Martin and her husband Martin W. Martin; M.E. Russell, widow of W.T. Russell, and their minor children, and the minor children of Sarah J. Stone, who had previously died. November 7, 1895, the case was tried upon the amended petition and the court gave judgment in favor of the plaintiffs in error, Eugenie and Tassie Ellis, against the defendants, the heirs of Jesse Russell, for the 1000 acres of land, in which judgment the description is definite and includes the land in controversy.
The trial court submitted this cause to the jury upon special issues, which with the answers of the jury are as follows:
"First. Is the land described in plaintiffs' petition, and which they seek to recover from the defendants Christian Wille and M.J. Jones, embraced within the boundaries of the bond for title executed by Renick as attorney in fact of G.B. Stone and others to L.D. Spight, dated April 27, 1874?
"To which the jury answered `Yes.'
"Second. Did Margaret B. Russell execute the deed purporting to *Page 536 have been signed by William T. Russell and Margaret B. Russell to G.B. Stone, dated September 17, 1868, and recorded in McLennan County deed records October, 1890?
"To which the jury answered `Yes.'
"Third. When was the deed from L.D. Spight to M.J. Jones, dated August 24, 1880, filed for record?
"To which the jury replied, `November 6, 1882, at 7 o'clock a.m.'
"Fourth. When did Ellis first take actual possession of the 1000 acres tract, either in person or by agent or tenant, and was such actual possession continuous thereafter or broken? If broken, when did the break occur, and how long continue before such possession again resumed?
"And in this connection you are charged, that, to constitute actual possession, there must be improvements upon the land, such as houses, fences, inclosures or other improvements, as to indicate an intention to appropriate the land as owner or as holding for the owner connected with actual occupancy or use of the premises.
"To which the jury replied, `April 6, 1882. Possession was continued.'"
Defendants asked the court to submit to the jury issues which were refused with the following explanation: "All the issues asked, as to use, occupation, and payment of taxes by defendants and their vendors, under their pleas of limitation, are refused, because the undisputed evidence shows they have had such possession and paid taxes as claimed by said defendants and as proposed to be submitted by said issues; and is so admitted by plaintiffs in open court." Judgment was entered upon the verdict of the jury in favor of the defendants, which judgment the Court of Civil Appeals affirmed.
The honorable Court of Civil Appeals made no finding of fact concerning the occupancy of the land by either party except the following statement: "We conclude, therefore, that appellees' plea of ten years limitation was sustained. This renders unnecessary a consideration of the other assignments which relate to the three and five years statute of limitation." The undisputed evidence shows that Spight inclosed and occupied about 200 acres of the land, claiming the whole as described in his bond from Green B. Stone.
The judgment of the District Court of McLennan County, rendered on the 7th day of November, 1895, in the case of Eugenie and Tassie Ellis, joined by their husbands, against Green B. Stone and the heirs of Jesse Russell, deceased, vested in the plaintiffs in that case all the title which the heirs of Jesse Russell had in and to the land at the time that suit was instituted, at which time Mrs. S.F. Stone and Mrs. S.J. Stone, two of the children and heirs of Jesse Russell and parties defendant to that suit, had an undivided half interest in the land here sued for. Therefore that judgment vested in Eugenie and Tassie Ellis an undivided half interest in the 1000 acres of land described in the judgment. The judgment was admissible against the defendants, although not parties to the action, as a muniment of title to establish the fact that plaintiffs *Page 537 had acquired the title of the heirs of Jesse Russell in the 1000 acres, and in connection with the proof of heirship of the parties and the grant of the patent to Jesse Russell constituted a chain of title from the sovereignty of the soil. McCamant v. Roberts, 66 Tex. 262, 263; 2 Black on Judg., sec. 607. W.T. Russell and Margaret Martin, two heirs of Jesse Russell, deceased, having conveyed their interest in the land to Green B. Stone, who conveyed it to L.D. Spight before that suit was instituted, the judgment was ineffective to pass their title to the plaintiffs, and in that respect did not bind Spight and those who claimed under him.
Notwithstanding the plaintiffs established by the judgment a superior title to one-half of the land in question, they could not recover, because the Court of Civil Appeals found that L.D. Spight and the other defendants who claimed under him had actual possession of a part of the land in controversy, claiming the whole under a bond for title and subsequent conveyances from Spight to the other defendants for more than ten years prior to the commencement of this action, hence the plaintiffs were barred from any recovery in this case by the statute of limitations of ten years.
The writ of error was granted because we understood from the record that Ellis, under whom the plaintiffs claim, had possession of a part of the land during the time defendants had possession of the other part, thereby limiting the possession of the defendants to the bounds of their actual occupancy, but upon examination we find that the question is not presented by the application for writ of error, therefore we can not consider that phase of the case.
We find no material error, and the judgments of the District Court and the Court of Civil Appeals are affirmed.
Affirmed.