On Motion for Rehearing.
The able and earnest arguments of appel lants for a rehearing have resulted in this court’s giving the cause extended reconsideration ; but, after having done so, it has been impelled to adhere to its original disposition, being still convinced that the determining issues were then correctly decided.
Among their arguments, appellants present with their motion certain maps prepared by themselves for such use on rehearing, but which are wholly dehors the record upon which the appeal has been decided; under well-settled rules, these papers cannot be considered either as evidence, or as having any other place in the actual record before us. Riggle et al. v. Automobile Finance Co. (Tex. Civ. App.) 276 S. W. 439; Queen Insurance Co. v. Galveston, H. & S. A. Ry. Co. et al. (Tex. Civ. App.) 290 S. W. 286, affirmed by the Supreme Court, 296 S. W. 484, on rehearing 3 S. W.(2d) 419; Stephens County v. J. N. McCammon, Inc., by the Supreme Court of Texas, 52 S.W.(2d) 53; Lipscomb v. Leffel & Co. (Tex. Civ. App.) 44 S.W.(2d) 1008; Holland v. Jackson et al. (Tex. Sup.) 37 S.W.(2d) 726.
Neither are such maps good as argument, since they apparently conflict with the findings of the trial court made from maps in evidence during the trial and which are a part of the record on appeal; these record maps, as formerly recited, were those of the appellants themselves.
The extended rearguments of appellants have failed to convince this court that the controlling fact findings below, which were adopted here, did not have sufficient support in the evidence; all these findings are therefore now reiterated, from which it follows that those requested in appellants’ motion cannot be made.
Much misunderstanding seems to have attended this court’s deduction upon page 12 of its original opinion when it said as to the effect of the trial court’s findings: “What Stuer himself first acquired from Soders and wife was the mathematical west half of the ‘Soders tract.’ ” That deduction simply proceeded from the view that the true location of the boundaries of this “Soders tract” was fixed determinably by the calls in the deed from Bqthje to Soders, and that, since the first conveyance out of that tract was made *518by Soders to Stuer of the “western yet undivided half” of the whole tract that had so gone into Soders before there had been established on the ground any lino dividing it into eastern and western portions, Stuer necessarily acquired an exact half of whatever was conveyed from Bethje to Soders, since the latter in turn merely copied the same description by which the whole had come into him.
It by no means follows, however, that the conveyances out of Stuer himself should all be measured by the same yardstick, when the record invariably shows that he thereafter disposed of nothing he had thus acquired, except by specific metes and bounds descriptions of tracts containing precise and limited areas.
In our opinion, the dominating question in the cause is the construction of the Kroll-Stuer two deeds to the 581¾6 acres each; notwithstanding the renewed insistence that these two instruments merely evidenced a partition of mathematical-quarters of the entire Soders tract, this court is constrained to adhere to its former conclusion to the contrary for the simple reason, among many others that might be stated, that, since the several deeds to each of them from Soders definitely located tho northern, eastern, and western lines of the whole Soders tract, the makers of these two deeds to portions thereof needed only to describe the respective tracts conveyed by the one to the other out of the same as the northwest quarter.and southwest quarter, respectively, of the Soders tract as thus having at least three fixed and certain boundary lines; but, instead of doing so, they — with great precision — figured out the exact distance calls, acreage, and starting points with reference to these three fixed lines of the inclosing tract with what seems to us as the evident intention to exchange only the definite 58i%6-acre tracts so specifically described by metes and bounds, and in so doing to have used the term “quarter” as a surplusage that may properly be discarded, since, by otherwise describing the tracts as they did, they could not meet; for that reason also, as formerly held, the call for the north line of the lower tract to go to the southwest corner of the one conveyed by Kroll to Stuer could not be held to as controlling,' because to do so would require the abandonment of the calls both of distance and the established western line of the Reiner-mann League as a base.
In this connection appellants criticize the recitation in the original opinion in reference to this southwest corner that “the evidence conclusively showing it to have been merely a constructive one”; perhaps this was an inaccuracy, but, if so, in terms only, and it might have been more appropriate to say that the comer was an estimated or an imaginary one; the “evidence” mentioned was not used' as a statement that there was any definite testimony to that effect, but in the sense that it ap- ■ peared evident from the record as a whole that those ancient deeds had not been based upon actual surveys, and, that being true, it seemed equally apparent from the texts of the deeds themselves and such surrounding circumstances as were shown that there was at that far distant time no such established corner either contemplated or designated for the southwest comer of the tract so conveyed by Kroll to Stuer; especially so, since there was neither a scintilla of evidence — nor anything to base a presumption to such effect upon— that any stake had either originally been placed, or thereafter located as having been, there; further, neither of the deeds calls for any such established corner.
Upon these considerations, we are clear in the conclusion that the arguments and authorities appellants now present to the effect that, in certain special circumstances, a call for a stake for corner — where surveys were made, and it appeared actually or presumptively that a stake had been put there — may be given the same effect as an artificial object, have no application to the situation here. Of such character is the leading case they cite: Wolf v. Scott (Tex. Civ. App.) 253 S. W. 905, 907.
Further discussion of this voluminous record is not deemed necessary, since the other material conclusions before announced are likewise thought to have been sound; among these is the closing statement of that opinion to the effect that the trial court held appellants’ deeds not to have embraced in their descriptions any part of the land adjudged to the appellees; upon re-examination, that is again found to be the rationale of, if not the express statement from, the trial court’s findings upon that feature of the cause; this, of course, had no reference to the claim that their deed down under Anderson to the 50-acre tract could be extended by Mrs. Stuer, after the death of her husband, so as to in effect enlarge that tract to 59⅛ acres; that matter is controlled by the conclusion elsewhere reached that no such extension was permissible.
In final disposition of the question of limitation, it still seems clear that the trial court’s finding that there was none is sufficiently supported ; appellants’ key witness on this question was plainly unable to so connect the various tenancies of the property upon which the continuity of the limitation claim depended as to complete the bar for any of the periods declared upon.
With appreciation to counsel for both sides for the aid given the court both originally and on rehearing, the motion has been overruled.
Overruled.