The plaintiff is the appellee and the defendant, the appellant.
The action is one to recover a tract ‘of land. Plaintiff claims to have acquired title to this land by adverse possession under Article 5510, R.S. 1925. The tract is in the D. Burrell League in Jefferson County. It covers 175 acres and was formerly owned by the plaintiff. In 1937, she conveyed it ‘(joined by her children) to the defendant bank’’ in payment of a community debt’ owed by her deceased husband and herself. She testified that afterward, in 1938, she began to hold possession of the land adversely to the deffendant and claims that she remained in adverse possession of the land, in person and by tenant, since, that time. The action was filed on April 12, 1951.
The cause was; tried’, to the court with a jury. Only one issue was submitted to the jury; this issue and’ me jury’s answer were as follows:
“Do you find from a preponderance of the evidence that the plaintiff, Mrs; Elsie Wingate, either, in person or by tenants, has been in peaceable, adverse and continuous possession of the property in controversy, cultivating, using and enjoying *937the same for a period of ten years or more prior to the filing-of this suit on the 12th day of April, 1951. Answer: Yes.”
On this verdict the trial court rendered judgment (as we construe the judgment) in behalf of plaintiff against defendant, for the title to and possession of the land.
The defendant bank has appealed from this judgment. Of the Points of Error assigned, it is only necessary to consider those attacking the sufficiency of the evidence to support the judgment.
Separate findings of fact and statements of the evidence have been filed and only such reference to the facts are made in this opinion as are needed to explain our conclusions.
Opinion
(1) The defendant has title to the land under and by virtue of the plaintiff’s deed unless the plaintiff’s proof of adverse possession supports the verdict.
(2) The land in suit lies in an enclosure which covers approximately 520 acres. As we have stated, the land in suit covers only 175 acres. The enclosure is made by a fence; and excepting some fences appurtenant to the plaintiff’s dwelling and out buildings, which enclose only a very small area, there are no partition fences within the area enclosed by the outer fence. All of the land in suit is within the general enclosure; none of it is within the fences appurtenant to the plaintiff’s dwelling.
The land in suit is roughly in the form of a reverse “L”, the upper bar of which extends due north and south entirely across the enclosure from the northern fence to the southern fence; the lower bar of the “L” extends westward, to the western fence of the enclosure. It is bordered on the south by the southern fence of the enclosure.
The land in suit thus divides the land enclosed by the outer fence. In the northwestern part of the enclosure is a tract of 172 acres. This belongs to the plaintiff, and in the northwestern corner of this (and thus at the extreme north-western corner of the enclosure) is the plaintiff’s dwelling. Immediately east of the land in suit are two rectangular tracts, each of 85 acres. The northern one belongs to the plaintiff’s sister, Mrs. Maggie Wingate, and the southern one belongs to the plaintiff. The land belonging to plaintiff’s sister is in the enclosure, and the plaintiff uses it (at least for grazing cattle), with her sister’s consent.
The plaintiff has resided continuously in her present dwelling since a time several years prior to. her deed to the defendant bank.
All this very land (that, is, plaintiff’s, defendant’s and Mrs. Maggie Wingate’s) but no more, lay within this enclosure for many years before plaintiff made her deed to the defendant; and it was used, excepting the small part farmed by Rodney Christ, for the same purposes after as well as before the plaintiff’s deed to, the defendant. The purposes mentioned .are grazing and farming in rice and the use made of the land by the plaintiff is described in part (5) of -this opinion. The practice is to farm the land in rice only at intervals, and when the land lay fallow it was used to graze cattle. The cultivation of rice has been done by C. A. Kiker since plaintiff’s deed to the defendant, as a tenant either of the plaintiff or of the defendant, and he also cultivated the enclosure in rice in 1934, prior to plaintiff’s deed.
The plaintiff’s deed to the defendant is dated March 7, 1937. There was some testimony by .the plaintiff that she first began to claim the land in 1938, when the fence about the enclosure was restored and repaired. The time in 1938 when this work was done on the fence is not very clearly shown by the evidence, and a period of at least a year very probably elapsed between the date of plaintiff’s deed and the date when plaintiff says that her present claim to the land began.
There is the following evidence concerning the restoration and" repair of the *938fence: At some time in 1938, before Rube Wingate returned to this country (and to the area in which the land in suit is situated) in August of that year, the fence along the western side of the enclosure was in bad condition and the fence elsewhere about the enclosure needed repairs, and the western fence was completely or. substantially rebuilt from the northwestern corner to the southwestern corner; this newly rebuilt fence was of four strands of barbed wire; and it was placed a very short distance, some two to four feet, inside of the original fence line. The western fence bordered the Burrell-Wingate road, and there was evidence that the work done by the County in maintaining this road had widened it and required withdrawal of the fence to protect it from the County’s machines. This western fence was 4,834 feet long, hot much less than a mile. The northern 2,353 feet of this fence was on the plaintiff’s "own land, that is, the 172 acres she owned in the northwestern part of the éñclosure. The southern 2,481 feet of this fence was on the land in suit. At the same time' repairs were also made to the fence about the rest of the enclosure. This part of the fence was several miles long. The extent and magnitude of these repairs' is 'not shown. In legal effect, all of tliis work was done by the plaintiff. There is also evidence that later, in 1938 or; 1939, the plaintiff and the owners of land adj'bining the enclosure on the north, acting together, restored about a mile of the northern fence of the enclosure.' Thjs .northern fence was 7,870.03 feet long; so that about two-thirds of it was restored. The jury could have found that this part of the northern fence was completely rebuilt. Because of briers which had grown up along the old fence this new fence was placed a few feet inside the original fence line. The plaintiff furnished the posts used in this work and the adjoining land owners who acted with her furnished the labor and the wire. How much of this new part of the northern fence extended along the northern boundary of the land belonging to the plaintiff cannot be determined; but the jury could have found that a substantial part of it was placed on the land in suit, along its northern boundary.
Plaintiff, nor anyone else, ever told the officers of the defendant bank that the plaintiff was claiming the land; and the officers of the defendant bank who had this land in charge, did not know until a time in 1951, shortly before this suit was filed in April of that year, that the plaintiff was claiming the land. For notice of her adverse claim the plaintiff must depend upon her own uses of the land and her conduct pertaining to the land.
The defendant’s first argument attacking the sufficiency of the evidence to support the judgment is that plaintiff never manifested the adverse character of her claim in such a way as to charge the defendant with notice that this adverse claim existed. Defendant says that plaintiff was bound to do this because she remained in possession, using the land after her deed as she did before that time, and that for a space of time (which, as we have shown, must have been about a year) she actually did not claim the land adversely.
(3) We agree with the defendant that if the plaintiff was in possession of the land at the time of her deed and remained in possession afterward, she was bound to give notice of the change in the nature of her possession from subservience to defendant’s title to a claim adverse to that title. The rule is stated as follows in Evans v. Templeton, 69 Tex. 375 at p. 378, 6 S.W. 843, 844: “In order to make the plea of limitation effectual in such case [the court refers to the case where the vendor/grantor remains in possession, using the land as he did before his deed], he riiust show some notorious act of ownership over the property, distinctly hostile to the claim of the grantee and the adverse possession after this must continue for a sufficient length of time before suit to complete the statutory bar. The ‘possession must not only be actual, but also visible, continuous, notorious, distinct, and hostile, and of such a character as to indicate unmistakably an assertion *939of claim of exclusive ownership in the occupant.’”
This ruling was adhered to at the next term in the City of Galveston v. Williams, 69 Tex. 449, 6 S.W. 860; but it was not applied because the conduct of the vendor/grantor and his vendee/grantee gave notice of adverse claim. The rule quoted from Evans v. Templeton was later applied by the Commission of Appeals in Scott v. Rodgers, 6 S.W.2d 731, and by the Supreme Court in Kidd v. Young, 144 Tex. 322, 190 S.W.2d 65. It was applied by the Court of Civil Appeals in Epps v. Finehout, 189 S.W.2d 631, and, in a different situation, by the Commission of Appeals in W. T. Carter & Bro. v. Holmes, 131 Tex. 365, 113 S.W.2d 1225. And see: Oury v. Saunders, 77 Tex. 278 at page 282, 13 S.W. 1030.
The sum total of these decisions is that ordinarily, if the grantor, at the time of his deed, was in possession of the land conveyed by him, and continued in possession thereof, making only that use of it which he made before his deed, his possession is presumably subservient to the title which he conveyed and consistent with it, and the grantee may assume this is.true unless he receives notice, or is charged with notice, to the contrary. That is, the grantor’s possession alone for the uses specified does not give notice of the fact that it has become adverse, and the grantee simply is not required to anticipate that his grantor intends or will intend to take his land away from him by adverse possession.
This rule of decision is in accord with the general rule that one in possession who has recognized the title of another must give notice that he has ceased to hold the land in subservience to the title of the other and has, instead, become an adverse claimant. See: Chapman v. Dickerson, Tex.Civ.App., 223 S.W. 318; Davis v. Lund, Tex.Com.App., 41 S.W.2d 57; Federal Land Bank v. King, Tex.Com.App., 122 S.W.2d 1061; Doherty v. Jensen, Tex.Civ,App., 174 S.W.2d 77; Id., 143 Tex. 64, 183 S.W.2d 453; 2 Tex.Jur. 114.
For a rule contrary to that quoted from Evans v. Templeton, plaintiff cites: Smith v. Montes, 11 Tex. 24; Hame v. Smith, 79 Tex. 310, 15 S.W. 240; Thomson v. Weisman, 98 Tex. 170, 82 S.W. 503; Dickey v. Forrester, Tex.Civ.App., 148 S.W. 1181; Moore v. McDonald, Tex.Civ.App., 298 S.W. 662; Texas & P. R. Co. v. Maynard, Tex.Civ.App., 51 S.W. 255; Great Southern Life Ins. Co. v. Dodson, Tex.Civ.App., 155 S.W.2d 379; and Green v. West Texas Coal Mining & Development Co., Tex.Civ. App., 225 S.W. 548. Some of these opinions contain language which seems to support the plaintiff’s position, but the cases adjudicated by these opinions can all be distinguished from the facts of this case on grounds which are stated in the defendant’s brief, and we consider them not applicable to this case.
(4) However, it is our conclusion that the rule of decision just discussed is not material, and that the argument of the defendant bank cannot be sustained; because this argument is founded upon the assumption that the proof showed as a matter of law that the plaintiff was in possession of the land in suit and was using this land when she made her deed to the defendant and that she continued in possession and in the use of this land thereafter. The evidence does not support this assumption as a matter of law.
A year or more intervened between the plaintiff’s deed and the restoration and repair of the fence with which she says that her adverse claim began, and the evidence concerning the use made and the acts done in possession of the land in suit during this time is very indefinite and general. The plaintiff resided at the northwestern corner of the enclosure at all times material to this suit, but her residence was on her own property and at a substantial distance from the land in suit. The evidence really does not show with any certainty what was done with the land in the enclosure during the period between the plaintiff’s deed and the restoration and repair of the fence. The land was not cultivated during this period, and the testimony of Rube Wingate (espc*940ially that given during his second examination) about the condition of the fence around the enclosure, especially, the western fence, shows that cattle probably could not have been kept in the enclosure, Rube Wingate gave the following testimony about the western fence:
“A. You see, I was there part of 1937.
“Q. When you were there, I will ask you whether or not there was such a fence along here that would keep stock in and out? A. You mean before the new one was built?
“Q. Before the new one was built. A. No, it would not keep stock in or out because it was full of holes and the fence had been there, in fact, it was just an old fence line.”-
We think that the evidence, at most, only raised the issue for the jury, whether the plaintiff was in possession of the land in suit when she conveyed this land to defendant, and whether she continued so thereafter.
Of course, if the plaintiff was not in possession of the land in suit at the date of her deed and thereafter continued so to be, her restoration and repair of the fence in 1938 and 1939 and her subsequent use of the land amounted to a re-entry upon the land and a resumption of possession of the land a substantial period of time after her deed. Texas & P. R. Co. v. Maynard, 51 S.W. 255; 2 C.J.S. Adverse Possession, § 95 (e), p. 655, The grantor, it is agreed, can re-acquire title by adverse possession under proper circumstances; and such a re-entry by the plaintiff would begin a new possession, and the statutes of limitation would begin, to run.
(5) We consider "next the defendant’s second argument attacking the sufficiency of the evidence to support the judgment. This argument is that plaintiff’s possession was not exclusive and continuous for the statutory period and that the defendant had possession of the land four times at intervals between the restoration and repair of the fence in 1938 and 1939, with which plaintiff says her adverse claim began, and the date when this suit was filed. The land in suit, or rather, that part of it which could be, was farmed in rice in 1938, 1942, 1944, 1948 and 1950 by C. A. Kiker, a son-in-law of the plaintiff’s. Defendant says that in 1942, 1944, 1948 and 1950 Kiker was the defendant’s tenant of the land in suit.
The plaintiff’s reply is that Kiker was her own tenant during these years.
The evidence material to this argument of the defendant’s is as follows: Kiker made an oral agreement, with plaintiff in 1938 giving him the right to farm in rice all of the land in the enclosure which could be farmed for that purpose, the agreement to continue as long as he wished. In no sense was this a contract; many material terms were not settled. For instance, future rentals were not fixed. Rice culture requires that land lie fallow for long periods and provision for this was not made; the years Kiker would farm the land were not fixed. Too, Kiker was not obligated to farm any land.
The evidence leaves it uncertain whether this agreement was made before or after the restoration and repair of the fence done in 1938; but there is evidence that Kiker did farm in the enclosure in 1938 under this agreement, and it is probable that at least the concluding part of his operations was after the restoration and repair of the fence which was done in that year. Some of the land he cultivated in rice was a part of the land in suit.
There is also evidence that this oral agreement has been respected by the plaintiff and that Kiker entered the enclosure under it and farmed at least the plaintiff’s own land under it in 1942 and 1944 and farmed a part of plaintiff’s own land in 1948 and 1950. During- the last two of the four years mentioned, he subleased a part of plaintiff’s own land to the plaintiff’s son-in-law Arthur Gilmore. Further, there was evidence that Kiker intended to cultivate rice in the enclosure during the year this cause was tried. For the years beginning with 1942 Kiker paid, rent to the plaintiff as is hereinafter stated.
*941On the other hand, the proof shows as a matter of law that for each of the years 1942, 1944, 1948 and 1950, Kiker made an oral agreement with the defendant (acting through Pondrom) whereby the defendant let to him for the purpose of farming in rice all that part, of the land in suit which could he used for that purpose, and it was agreed by Kiker and Pondrom that this was 100 acres. The rent was fixed at $3 an acre or a total rental each year of $300. A separate agreement was made for each of the four years mentioned, which -yvas to endure until farming operations for the particular year were concluded; but the terms of these agreements were always the same.
There is evidence that the plaintiff did not know these agreements between Kiker and the defendant bank had been made.
During each of the four years mentioned; Kiker farmed the land in suit in rice and after his farming operations were ended paid the defendant the rentals agreed upon.
The evidence does not show what rent Kiker paid the plaintiff for 1938; but for the years 1942, 1944, 1948 and 1950, he paid plaintiff rent of $3 an acre as he did defendant, and after the crop year, but he paid plaintiff only for her own land. Kiker said that for 1.942 he paid plaintiff’s sister rent for the.land belonging to this person; but what was done afterward does not appear. However, the material fact is that Kiker did not pay two rents for the land in suit; he did not pay plaintiff rent for that land but, instead, paid this rent to the defendant &c. we have stated. The plaintiff accepted, without question, the rentals paid to her and made no, demand for more.
Kiker said that he had a separate agreement with the plaintiff for her own land for each of the years 1942, 1944, 1948 and 1950, just as he had done with the defendant bank, and the circumstances (the plaintiff’s use of the enclosure) required him to make an agreement of some sort, but the tenor of the plaintiff’s evidence is that she did not realize that Kiker was. going to pay her only, for her own land. We assume that this evidence raised an issue for the jury, whether the plaintiff knew that Kiker intended to pay her rent only for her own property.
However, there is no evidence that Kiker misrepresented any fact to plaintiff or that he attempted to suppress knowledge or his relation with the defendant. The evidence pertaining to this matter is to the contrary. Thus plaintiff testified that when Kiker delivered his checks to her for his rent he told her that these were the rent for her “rice ground”; and these statements were literally true. Furthermore, the plaintiff lived in the northwestern corner of the enclosure, and the location of’ Kilter's crops and the area cultivated by Kiker were apparent to her and her sons. Furthermore, Kiker represented to the agency which supplied him with water for irrigation that a part of the land he would cultivate belonged to the defendant bank and a part belonged to the plaintiff.
The evidence shows, too, that Kiker first learned of the plaintiff’s adverse claim in 1947, when he attempted to forestall a purchase by a stranger of a part of the land in suit. He got this information from his brother-in-law Rube Wingate. The plaintiff never had told him of her claim.
Further,, there is no evidence that the defendant knew of the agreement of 1938 between Kiker and the plaintiff, nor is there anything in proof which would charge the defendant with notice of this agreement. It does not appear that the present officers of the defendant bank knew that Kiker had farmed the land in suit in 1938, but if they had this information would not have suggested to them that Kiker would do so again in 1942 under an agreement with the plaintiff, especially after an agreement had been made with Kiker by. the defendant.
Further, the defendant bank did not have actual knowledge of the plaintiff’s adverse claim until shortly before this suit was filed in 1951. Pondrom did not know, when he made his agreements with Kiker in 1942, 1944, 1948, and 1950, that the plaintiff claimed the land in suit adversely.
*942The evidence is that Kiker made each of his agreements with the defendant at a time when he was not in possession of any land in the enclosure, and at a time when the plaintiff was occupying the land herself and thus knew that Kiker did not have possession of it. When Kiker was not farming in the enclosure the plaintiff kept cattle in there, as did her sons Rube and Hal Wingate, with her consent, and sometimes Kiker had cattle of his own in the enclosure, also with the plaintiff’s consent. However, as we construe the evidence, the plaintiff exercised control over the enclosure during these periods and was in possession of it; Kiker had no possessory rights and the relation between him and the plaintiff concerning the cattle resembles an agistment. It must also be said in addition that the evidence is uncertain regarding the times when Kiker’s cattle were in the enclosure.
The agreement for 1942 between Kiker and the defendant bank was made in the latter part of 1941, and Kiker entered the land in suit, to farm it under this agreement, in January 1942.
Such evidence as there is concerning the dates when Kiker made his agreements with defendant after 1942 is by way of inference from Kiker’s statement that he entered the land under these agreements. This statement necessarily implies that the agreement was made before the entry for farming; but the agreements after that for 1942 are really not material since less than 10 years have elapsed since the agreement for 1942 was made.
(6) On these facts we conclude that Kiker was the defendant’s tenant for 1942 and not the plaintiff’s.
Plaintiff’s claim that Kiker was her tenant is founded upon the oral agreement of 1938 between her and Kiker; it is her theory of the facts that this remained in force and attached to the land in suit.
However, this agreement of 1938 was not a contract and bound neither Kiker nor the plaintiff. Kiker was free to terminate the agreement and make his contracts with the defendant.
Furthermore, there was no estoppel in the plaintiff’s favor. Stated in general terms, the rule of decision is that one who takes or holds possession of land under another, by virtue of an agreement with the latter that he shall do so, is estopped to deny his landlord’s right of possession, so that, in consequence, if he attorns to a third person without the landlord’s consent, this attornment does not affect the first tenancy and the first landlord does not lose his possession. See: Cobb v. Robertson, 99 Tex. 138, 86 S.W. 746 and 87 S.W. 1148; Juneman v. Franklin, 67 Tex. 411, 3 S.W. 562; and see: McKie v. Anderson, 78 Tex. 207, 209, 14 S.W. 576; Stevenson v. Rogers, 103 Tex. 169, 172, 125 S.W. 1, 29 L.R.A.,N.S., 85.
Estoppel under the general rule does not come into operation, however, until the tenant takes or assumes to hold possession. It is this and not the prior agreement at least, one like that between plaintiff and defendant in 1938) which creates the estoppel. If he does not take or have possession, the tenant to be can repudiate his agreement with the first landlord and attorn to another. 51 C.J.S., Landlord and Tenant, § 268, p. 912; 36 C.J. 1228, §§ 567-570; 32 Am.Jur. 110, § 102; Wright v. Graves, 80 Ala. 416; William James Sons Co. v. Hutchinson, 73 W.Va. 488, 80 S.E. 768; Brown v. Grayson, 160 Tenn. 374, 24 S.W.2d 894. This was Tiffany’s view of the estoppel when applied in an action of ejectment. Tiffany classified the estoppel in favor of the first landlord, when applied in the action of ejectment, as one in pais, protecting the landlord against a breach of confidence. See Tiffany’s Landlord and Tenant, § 78, Subsec. c., pp. 437 and 438 (Ed. of 1912).
There are expressions in Texas decisions which are in accord with this view of the estoppel. See Turner v. Smith, 11 Tex. 620 at page 629; Flanagan v. Pearson, 61 Tex. 302; Juneman v. Franklin, 67 Tex. 411, 3 S.W. 562; McKie v. Anderson, 78 *943Tex. 207, 209,14 S.W. 576; Buford v. Wasson, 49 Tex.Civ.App. 454, 109 S.W. 275.
The only other reason occurring to us for which defendant might be denied the right to claim Kiker for its tenant is the possibility that to give defendant this right might involve had faith or sharp practice toward the plaintiff by the defendant and thus accomplish something in the nature of a fraud, as by an entry into the enclosure ostensibly under the plaintiff but secretly under the defendant bank. However, the evidence completely rebuts this possibility. In the first place (and this ought to settle the matter since the defendant bank owned the land in suit) the defendant bank actually did not know that the plaintiff claimed the land adversely (constructive knowledge by force of law is not actual knowledge) and did not know and was not charged with knowing that Kiker had made any agreement with the plaintiff concerning the land in suit. In the second place, Kiker knew that the defendant bank owned the land in suit; he and his wife joined the plaintiff in her deed to the bank; and he did not know before 1947 that the plaintiff claimed the land adversely. Too, Kiker never made any misrepresentation to the plaintiff; after 1938 he never paid her rent for the land in suit, but, instead, only paid her for her own land and actually told her so. The plaintiff, as we have pointed out, lived in the enclosure; the location and apparent area of Kiker would presumably, have been $300 and she knew how much money she had received; each of the payments to her, by Kiker would presumbly, have been $300 larger if the land in suit had been involved in the payments, to her. Nor did Kiker make any effort to suppress knowledge of his relations with defendant bank. Instead, as we have pointed out, he declared it at least to the agency which furnished him water for irrigation. True, Kiker was plaintiff’s son-in-law and the relation between him and plaintiff was not at arm’s length; hut we have been unable to see that Kiker committed any fraud upon or performed any sharp practice toward the plaintiff, even if the plaintiff did not know about his agreements with the defendant bank. If Kiker did not know of the plaintiff’s adverse claim there was no special reason why he should discuss the agreement between him and, the defendant bank with the plaintiff. Kiker, in fact, seems to have acted honestly and openly, without suspecting that the plaintiff thought him to be occupying the land in suit for herself instead of for the owner, namely, the defendant bank.
(7) These conclusions require that the defendant’s second argument attacking the sufficiency of the evidence be sustained. Kiker was the defendant’s tenant of the land in suit during at least the year 1942 and in all probability during 1944, 1948 and 1950. However, the tenancy during 1942 interrupted the operation of the statute of limitation, less then 10 years expired between termination of Kiker’s possession of the land as defendant’s tenant in 1942 and the date when this suit was filed in April, 1951. The plaintiff’s possession was not exclusive and continuous for 10 years and therefore gave her no title against the defendant.
The judgment of the trial court must therefore be reversed and, since the defendant’s title was proved by the plaintiff’s conveyance to said defendant, judgment for title and possession must be rendered in behalf of the defendant bank, against the plaintiff. Point land the other-points of error related thereto are sustained. The defendant was entitled to an instructed verdict; and it is unnecessary, to consider points of error which do not concern the sufficiency of, the evidence to support the verdict.
(8) In her counter-points 1 and 2.the plaintiff has argued that defendant has no pleading on file which had any legal effect and that as a result she was not required to prove the grounds of action alleged by her and further, that the defendant bank was not entitled to put in proof any evidence whatsoever. The defendant filed an answer consisting of a plea of not guilty and a plea of the two-year statute of limitations and also plead a cross-action in trespass to try title. This cross-action was *944dismissed before trial; the two year statute was not involved in this case; and thus the defendant’s answer, so far as the merits are concerned, came down to the plea of not guilty. The plaintiff argues that her suit is to remove cloud and that a plea of not guilty does not lie in such a suit. The defendant argues that the suit was actually one to recover the title to land, to he dealt with as an action in trespass to try title, and we agree with the defendant. If, in form, the petition contains allegations, made in. suits to quiet title, it also contains allegations showing that the plaintiff claims title to the land against the defendant by virtue of adverse possession; and this was, in fact, the only claim of title which the plaintiff had to the land. As we have stated several times, the plaintiff had previously conveyed the land to the defendant. Of the four paragraphs in the petition alleging plaintiff’s grounds of action, paragraphs 1, 2 and 4 are such allegations as are made in trespass to title when the plaintiff alleges title generally and also by adverse possession. The petition actually contains every allegation listed in T.R. 783 except an allegation of disseizin by the defendant, and this allegation is not essential to the maintenance of trespass to try title. In substance and effect, the petition sues for land, that is, the ownership and the right to possession, and the allegations of cloud in paragraph 3 and the special prayer for removal of the cloud seem only incidental and formal. The decision is Rockhold v. Lucky Tiger Oil Co., Tex.Civ.App., 4 S.W.2d 1046, cited by the plaintiff, is not in point. There, the plea of not guilty was not filed in answer to the petition it was filed in answer to a cross action which actually was in trespass to try title. The question was, what proof was admissible under the petition and not, what proof was admissible under the supplemental petition. The petition incidentally alleged the plaintiff’s title specially.
Too, the defendant’s plea of not guilty was at least equivalent to a general denial. The plaintiff argues that if it was it admitted her title; but we do hot so construe it for at least the reason that the defendant’s plea of not guilty ought to be construed as expressing the intention which normally would be expressed by such a plea if filed in answer to a petition containing the formal allegations in trespass to try title. But the plaintiff has not taken her own petition fully into account. The plaintiff did allege that the defendant had set up adverse claim to the land but immediately before that also alleged “that notwithstanding the facts above alleged, the defendant is asserting some character of claim to the above lands and tenements the exact nature, of which is unknown to plaintiff” It seems to us that á general denial would charge the plaintiff with knowing what the nature of the defendant’ claim was it would not admit that defendant was making no claim at. all.
The judgment of the trial court is reversed and judgment is here rendered that plaintiff take nothing against the defendant.