OPIXIOX ox merits.
RICE, Associate Justice.— This suit was brought by Mrs. M. F. Mitchell, as feme sole, in the form of trespass to try title against the Gulf, Colorado & Santa Fe Railway Company for the recovery of 78/100 of an acre of land out of the Himmer survey, adjoining the city of San Angelo.
The appellee filed a plea of not guilty, and set up the statute of limitation of five and ten years, and also vouched in its warrantors, Pulliam and Johnson, praying that if judgment should be had *406against it, that then it, in turn, should recover over against them for said land upon their warranty.
There was a trial before the court without a jury, who rendered judgment for appellee, and plaintiff has appealed.
The evidence proved and tended to show that the former husband of plaintiff, Bent Mitchel, bought two small parcels of land in 1888, out of said survey, from Jonathan, Miles, who was the common source of title, the first tract containing about two acres, and the other less than oné acre, being the tract in controversy herein; that he obtained a deed for the first tract, but that no deed was ever executed to him for the latter tract, but that immediately after his purchase of the former tract he built a house thereon, and some five months thereafter he enclosed the latter tract, as well as the former, by a common fence, and used it in connection with his home for growing vegetables thereon and for other purposes, and that his wife, from whom he afterwards separated and was divorced, continued to use the entire property as her homestead until 1907, when the appellee brought condemnation proceedings for the tract first purchased, as well as an adjoining tract out of the same survey, which appellant had theretofore inherited from her. deceased son Clarence, and that after said condemnation proceedings were concluded, she conveyed the first tract, as well as the tract so inherited from her son, to the said railroad company, but did not convey the tract in controversy; and soon after the execution of said deed she withdrew her fence from around said two tracts so conveyed, and enclosed the strip in controversy, which she claims as her own, both by virtue of said alleged paroi sale to her former husband, as well as by the ten years statute of limitation, and from which she was ejected by appellee.
The appellee, however, contended that said small strip, the tract in controversy, is a part of a 100 acre tract out of the same survey, which it purchased from Pulliam and Johnson, who by mesne conveyances, claimed title thereto, through Jonathan Miles, the common source. It' was shown that appellee had paper title to said 100 acres, and that the field notes thereof embraced the land in controversy.
During the progress of the trial appellee, over plaintiff’s objection, offered in evidence a lease from Burroughs, attorney in fact for Stoddard, to plaintiff for said one hundred acres, for the purpose of disproving plaintiff’s claim of. adverse possession under her plea of ten years limitation, said Stoddard being a vendor of said Pulliam and Johnson. Plaintiff then offered to show by her own testimony the purpose for which she signed said lease; that it was not intended by her to lease any of the land in controversy, or any land within her enclosure, but only that outside of her premises, to which the defendant objected, which objection was sustained by the court and plaintiff excepted, and if allowed, would have testified that she did n.ot understand at the time she' executed said lease that it included any part of the land in controversy, or any land within her enclosure; that the larger tract which she intended to lease and thought she was leasing, lay just outside of her premises and entirely surrounding them; that she had no intention of leasing any land within her enclosure, but only sudh land as she had no right to use, and it was not explained to her *407that the land included in the field notes she was leasing would include any land within her premises, or she would not have signed the same; that she did not understand that the field notes included her homestead and the land in controversy, and did not intend thereby io admit title in (any one else to) the land within her premises.
While it was perfectly competent to introduce the lease for the purpose indicated, yet plaintiff was clearly entitled to show how she came to sign it, and to give her explanation thereof, as she proffered to do, and we think she was not debarred from so doing on the ground that paroi evidence can not'be offered for the purpose of contradicting or varying the terms of a written instrument, because we understand the rule to be in accordance with plaintiff’s contention that paroi evidence is always admissible to explain documents introduced as admissions of a party, when such documents do not vest, pass or extinguish any right in litigation, but are used merely as evidence of the fact and not as evidence of a contract or right. See Pierce v. Johnson, 50 S. W., 610; Anderson v. Walker, 49 S. W., 937-47; Duncan v. Matney, 29 Mo., 368, 77 Am. Dec., 575 (Mo.); Am. & Eng. Ency. Law, vol. 21, p. 1087 (b).
In treating of this matter in vol. 21, Am. & Eng. Ency. Law, supra, it is said: “The rule (meaning the one in question) does not apply to.papers which are merely introduced collaterally and used for evidentiary purposes as admissions of a party; for a paper which does not by contract, operation of law or otherwise vest or pass or extinguish any right in litigation, but is used merely as evidence of a fact, and not as evidence of a contract or right, is susceptible of explanation by evidence of extrinsic facts and circumstances.”
In Duncan v. Matney, supra, it is also said: “That the court erred in rejecting as evidence the advertisement of the sale. If it be said that it was inadmissible because it contradicted the defendant’s deed, it may be answered that although a deed can not be contradicted When used as evidence of the agreement and understanding of the parties to it, yet this deed was- offered in evidence by the plaintiff merely as an admission of the defendant, and the rule is that when an instrument, of whatever solemnity it may be, is offered merely as an admission made by the party executing it, it is always competent to him to explain it, and to show that he was under a mistake in making it, or to prove any other circumstances which will do away with the effect of the admission.”
hi or do we think that it was necessary, as appellee contends, to plead fraud, accident or mistake, by which she was led to execute the lease from Stoddard before being allowed to explain it under the rule above announced, because the same was not a paper under which either party claimed any right, but was only introduced as an admission tending to negative plaintiff’s adverse holding under the statute of limitation. We therefore sustain the second and third assignments, complaining of the action of the court in refusing to admit this evidence.
The remaining assignments relate to the facts, and question the correctness of the conclusions of the court drawn therefrom; and, while we agree with the correctness of appellant’s contention that one *408Avho buys land by verbal sale, paying the purchase price, entering into possession and occupying the same, acquires title thereto (Garner v. Stubblefield, 5 Texas, 552; Dugan v. Colville, 8 Texas, 126; Harold v. Sumner, 78 Texas, 581) still, as the case seems not to have been fully developed upon this issue, and as there were facts tending to support the findings of the court, Ave deem it best not to express an opinion with reference to the probative force of this evidence; but, for the error heretofore indicated, the judgment of the court below is reArersed and the cause remanded.
Reversed and remanded.