This is an action of trespass to try title. It might have been more properly brought as an action of forcible entry and detainer. The land in controversy embraces about two hundred and seventy-seven or two hundred and eighty acres, situated in Fayette county. Grilliam, the appellee, as plaintiff below, claims the land under a deed from Henry Austin, Jr., one of the children and heirs of Henry Austin, Sr.
The appellant, it is proved, surveyed the land for the appellee, and must have known, before the commencement of this suit, that Grilliam claimed the land under his-deed from Austin. Alexander sets up no title in himself; the evidence places him in the position of a trespasser seeking to oust Grilliam, the prior occupant and possessor. It certainly requires some boldness on the part of the appellant, when he appeals to a court of last resort, urging no title, and setting up none in himself, but simply insisting that the District Court has committed errors in establishing the rights of the appellee.
For the proper disposition of this case, we regard it as. wholly immaterial whether the district judge erred or-not in admitting evidence or ruling out evidence.
Such facts are established beyond all controversy as. enable us to determine that the law of the case is with the appellee. He was in possession of the land, claiming: it under his deed from Henry Austin, before the appellant entered upon it. The appellant had no title, and this no one knew better than himself. He must have-, known, and did know, that he was only a trespasser.. But he appears to have been obstinately determined, and. his appeal to this court shows that he still is, to dispossess one who had an older possessory right, if not a better one.
The position of the parties thus circumstanced and situated, when viewed in the light of the law, is this:
*235“Where the plaintiff shows priority of possession, and no title is proved in the defendant, the plaintiff, by virtue-of his possession merely, shall have judgment.”
Chief Justice Hemphill, in deciding the case of Wilson v. Palmer, 18 Texas, 595, further remarks : “It appears-now to be a well established principle, though once doubted, that a prior occupancy is a sufficient title against a wrong-doer.” He cites 9 Texas, 139; 2 Black., 197; 2 Saunders, 111; 2 Johnson, 22; 4 Johnson, 202; 7 Cowen, 602.
We have examined the authorities referred to by appellee’s counsel, and find them aptly cited, and bearing strongly upon this case. The same doctrine is again stated in Kolb v. Bankhead, 18 Texas, 231, et seq.; Jackson v. Boston, 1 Cush., 375; Doe v. Read, 8 East, 356; 1 M. & N., 346; 15 Wend., 171; Cateris v. Cowper, 4 Taunt.; Christy v. Scott, 14 Howard, 292.
■ This was a case from this State, and the doctrine herein-laid down is that a mere trespasser or intruder cannot enter upon lands in the possession of another and eject him therefrom, and then question his title, or set up an outstanding title in another.
The courts say the maxim that the plaintiff must recover on the strength of his own title, and not on the weakness of the defendant, is applicable to all actions for the recovery of property. But if the plaintiff had actual prior possession of the land, this is title strong enough to enable him to recover from a mere trespasser, without-title.
The doctrine is too well established in this State and elsewhere now to be doubted, that prior occupancy will enable a party to maintain the action of trespass to try title against a wrong-doer who has no title in himself.
The appellee appears to have maintained his title to the land in controversy upon the strength of his title coming. *236from the Mexican government, through Henry Austin, Sr., and Henry Austin,-Jr. Admitting that he was only a tenant in common, having succeeded to Henry’s share, with the other children and heirs of Henry Austin, Sr.,' he might maintain the[action of trespass to try title. (See Croft v. Rains, 10 Texas, 523; Grassmeyer v. Beson, 18 Texas, 767; Watrous v. McGrew, 16 Texas, 511.) It is .strongly urged, and the argument would be very forcible -in a proper case, that the proofs introduced by the plaintiff below did not correspond with the allegations of the pleadings; and it is true that the plaintiff below set np ■■title in himself as sole tenant to the land in controversy; .and we are unable to see wherein this allegation is not .supported by the evidence; at least so far none of the heirs or assigns of Henry Austin, Sr., dispute this proposition, and the appellant has not placed himself in a posi"tion to do so.
The brief and argument of appellant’s counsel is able and ingenious ; they have left no stone unturned in the interest of their client; but we cannot adopt their , theory -.of the case; and for the reasons given we affirm the judgment of the District court.
Affirmed.
Behearing was granted July 23, 1872. April 14, 1873, former judgment adhered to—no opinion delivered.