In our opinion there is no error in the judgment of the court below which will require its reversal.
Appellant’s position is that, as Horton claimed under an executory contract with Horvell, and as Boyd held under a similar contract with Horton, the possession of the latter could not be antagonistic to either of the other two.
In this he is correct. Roosevelt v. Davis, 49 Tex., 463; Keys v. Hason, 44 Tex., 144.
But when Norvell repudiated his contract with Horton and sold the land to other parties, there was no privity between Boyd and these second vendees, and he could hold against them. See authorities cited above.
In the litigation which took place between Horton and Horvoll, and in which the second vendees intervened, Boyd, although in possession, was not made a party; and it is well settled that he was not barred by the judgment.
The sixth and eight assignments are, in effect, that the court erred in adjudging to the defendant one hundred and sixty acres of land under his plea of limitation.
Appellant insists that Boyd had only twenty acres of land inclosed; that he was a mere intruder, and that if he recovered at all, his recovery should be limited to the land actually inclosed; and for this he cites Whitehead v. Foley, 28 Tex., 285, and Cantagrel v. Yon Lupin, 58 Tex., 578.
Counsel appears to have misapprehended the decisions under the different periods of limitation.
Under the statutes of three and five years, a mere intruder would not recover anything; for under the one the holder must have at least color of title, and under the other he must have a deed duly recorded.
But under the long term, if the intruder hold only five acres in accordance with the statute, the law gives him one hundred and sixty acres, including his improvements.
If, however, the occupant holds under some memorandum of title *545duly recorded, his possession will then extend to the boundaries specified in the instrument. R. S., secs. 3194, 3195.
[Opinion adopted December 2, 1884.]The ninth and tenth assignments may be considered together.
Under the ninth appellant objects that the judgment is not sustained by the finding of the court. The court found that the defendant had held exclusive adverse possession, while the language of the statute is “ peaceable and adverse possession.”
This objection is made for the first time in this court. It was not made below, although there was a motion for a new trial.
But whatever may have been the language of the finding, the evidence is sufficient to sustain the judgment.
It is also objected here — though this objection was not made below — that the court erred in adjudging to the defendant the particular tract of land which was described in his answer; but it is not shown or intimated that this tract was more valuable than the adjoining land.
The objection under the eleventh assignment is that the judgment gave the defendant one hundred and sixty acres of land, although the plaintiff in his petition claimed only one hundred acres.
The answer of the defendant amounted to a cross-bill. He claimed the hundred and sixty acres described and then prayed that his title be confirmed and clouds removed, etc. The plaintiff did not disclaim. If he owned the excess over the amount for which he sued he has no cause of complaint.
If he did not own it, he still cannot complain, and the real owner will not be harmed by the judgment.
Our opinion is that the judgment should be affirmed.
Affirmed.