On Motion for Rehearing
Appellant asks that we consider point two in his brief, which is that he was entitled to recover for a breach of warranty, if not damages for misrepresentation of title. We did consider the point, but did not write on it further than to. say that all issues raised and not submitted and not waived are presumed to have been found by the trial court in such manner as will support the judgment. No issue was submitted or requested on that ground of recovery.
We do not think that appellant could recover for breach of warranty in the absence of evidence and findings that he was ejected from the premises, actually or constructively, by a holder of a title superior to his own. Rancho Bonito Land & Live-Stock Co. v. North, 92 Tex. 72, 45 S.W. 994; Schneider v. Lipscomb County Nat. Farm Loan Ass’n, 146 Tex. 66, 202 S.W.2d 832, 172 A.L.R. 1. A reputable lawyer testified that his examination of an abstract of title to the property in dispute disclosed that the record title was in the parties from whom appellant later acquired deeds. There was no other evidence as to their title. We believe that whether an abstract shows title in a particular person is a question of law and not of fact. Brack-enridge v. Claridge, 91 Tex. 527, 44 S.W. 819, 43 L.R.A. 593; Moser v. Tucker, Tex.Civ.App., 195 S.W. 259; Bourland v. Huffhines, Tex.Civ.App., 269 S.W. 184; Wakeland v. Robertson, Tex.Civ.App., 219 S.W. 842; Crenshaw v. True, Tex.Civ.App., 295 S.W. 632. Furthermore, we find in the record no evidence that anybody ever asserted superior title to the property in such manner as would constitute a constructive eviction of appellant. All that is shown is that when appellant was convinced that others held superior title, he offered to and did pay them for deeds conveying their supposed title to himself. This has been held not to amount to constructive disseisin. 12 Tex.Jur., p. 43, sec. 27, and cases there cited. Had he waited for an assertion of adverse title, his own title might have been perfected by limitation. There is nothing in the record to indicate that he would have lost anything by waiting. If the lapse of time would have secured him against loss, the vendor is entitled to the benefit of that contingency, as well after as before the conveyance. Rancho Bonito Land & Live-*543Stock Co. v. North, supra. The mere existence of a superior title in another is not a breach of warranty because that does not work an eviction of a buyer who has entered upon the land. Jones’ Heirs v. Paul’s Heirs, 59 Tex. 41.
Since it does not conclusively appear that there was superior title in those from whom appellant later acquired deeds, nor that there was either actual or constructive eviction, and since no such issues were submitted or requested, if it cannot be said that appellant waived the ground of recovery based upon his allegations of breach of warranty, it must be said that such issues, if raised, were found by the Court in such manner as will support the judgment. Rule 279, T.R.C.P.
The motion for rehearing is overruled.