Edwin Davies sued John W. Rutland, alleging ownership of 50 acres of land in Victoria county, being 30 acres out of S. A. & M. G. Railroad Company survey No. 3, and 20 acres of the same company’s survey No. 5, and said 50 acres being described by metes and bounds as follows:
“Beginning at an iron stake, the north corner of the 423-acre tract of land that was conveyed by John Allen Gano to Margaret J. Doxey by deed recorded in Vol. 44, page 633, of the deed records of Victoria county, Texas, of which the land herein described is a part; thence S. 45° east 1,051% varas to a stake on the northeast line of said 423-acre tract; thence S. 45° west 268Vio varas to a stake in prairie; thence N. 45° west 1,051% varas to a stake on the northwest line of said 423-acre tract; thence N. 45° east 26SVio varas to the place of beginning.”
He further alleged that Rutland had entered upon 8% acres out of said parcel, described by metes and bounds as follows:
“Beginning at a corner of fence, which is S. 45° east, 1,011.5 varas from the north corner of the above-described 50-acre tract and also north corner of the above-mentioned 423-acre tract; thence S. 45° east 40 varas to a stake in the northeast line of said 423-acre tract and comer of the above-described 50-acre tract; thence S. 45° west 268.4 varas to a stake in prairie for corner and corner of said 50 acres; thence N. 45° west 1,051.5 varas to stake for corner in line of public road; thence N. 45° east with line of said public road 35.7 varas to corner of fence; thence S. 45° east with fence line 1,010 varas to corner of fence;. thence N. 45° east 231 varas with fence to the place of beginning.”
He sought to recover such parcel, together with its rental value.
Rutland answered by plea of not guilty; pleas of limitation under the three, five, and ten years’ statutes; plea of agreed boundary line between plaintiff and defendant’s grantor, Mrs. Doxey; and purchase by defendant of the land in controversy after a survey made by a surveyor employed by him and Mrs. Doxey. In connection with the plea of agreed boundary, defendant pleaded that plaintiff was estopped to dispute the line ■thus alleged to have been agreed upon.
The trial resulted in a judgment for defendant.
By deed recorded November 19, 1900, Jno. Allen Gano conveyed to Mrs. M. J. Doxey 423 acres of land described as follows:
“ * * * Being 352.2 acres of the S. A. & M. G. R. R. Co. survey No. 3, 35 acres of the same company’s survey No. 5, and 35.8 acres of the Wm. Nettles survey and more particularly described as follows, to wit: Beginning at a stake for corner the same being S. 44% degrees E. 212 varas from the northwest corner of a survey of 128% acres of land conveyed by J. M. Gonzales to Robt. Clark, thence N. 45% degrees E. 245 varas, for corner, it being 212 varas S. 44% E. from the S. E. corner of a survey ’of 128% acres conveyed by Robt. Clark to Jose Maria Gonzales, thence N. 44% degrees W. 729 varas to stake for corner. Thence N. 45 degrees E. 963.65 varas to iron stake for corner of land sold by John Allen Gano to Miller. Thence S. 45 degrees E. 2,103 varas to another corner of Miller’s land, an iron stake. Thence S. 45 degrees W. 1,232.65 varas to a stake for comer in the west line of the 128%-acre tract conveyed by Gonzales to Clark. Thence N. 44% degrees W. 1,374 varas to the place of beginning, containing 423 acres of land. * * . * ”
By deed dated October 2, 1909, and duly filed for record on October 16, 1909, Mrs. M. J. Doxey conveyed to plaintiff the 50>-acre tract of land described in his petition.
On October 23, 1915, said Mrs. Doxey conveyed to defendant 376.15 acres of land described as follows:
“Beginning at a stake in the south line of a public road, the same being the southwest corner of a 50-acre tract heretofore conveyed to E. Davies by Mrs. M. J. Doxey;
“Thence S. 45 degrees 43 minutes E. 1,010 varas to a stake the S. E. corner of the said Davies 50-acre tract, for corner of this survey;
“Thence N. 44 degrees 34 minutes E. 231 varas to a stake the N. E. corner of said Davies 50-acre tract, in the west line of the J. W. Rut-land 600-acre tract, for corner of this survey;
“Thence S. 45 degrees 26 minutes E. with said line of said Rutland tract 1,05S varas to a stake in the north line of a public road, the same being the common comer of the said Rutland tract and the N. E. comer of this tract for corner of this survey;
“Thence S. 44 degrees W. with north line of said public rpad 1,236 varas to a stake in the east line of the J. Gonzales tract, said stake also being the comer of said public road and the S. E. corner of this tract for comer of this survey; •
“Thence N. 44 degrees 40 minutes W. with the E. line of said Gonzales tract and the J. I. French tract 1,358 varas to a stake, the S. E. corner of the D. M. Kay tract, for corner of this survey;
“Thence N. 45 degrees 23 minutes E. with the south line of said Kay tract 241 varas to a stake the N. E. comer of the said Kay tract for corner of this survey;
“Thence N. 45 degrees W. with the east line *237of said Kay tract 718 varas to a stake, corner of public road, for corner of this survey;
“Thence N. 44 degrees B. with the south line of public road 736 varas to the place of beginning, containing within these metes and bounds 376.15 acres of land, of which 30 acres more or less, are out of the Wm. Nettles survey, abstract No. 375, 306 acres, more or less, out of the S. A. & M. G. It. R. Go. survey No. 3, abstract No. 314 and 31.15 acres, more or less, out of the S. A. & M. G. R. R. Co. survey No. 5, abstract No. 316. All courses run at a variation of 9° East.”
This conveyance was introduced in evidence by plaintiff “only for the purpose of showing that it called for the exception of the Davies 50 acres out of the land conveyed to Mrs. M. J. Doxey by John Allen Gano.”
It was agreed that the deed introduced Dy plaintiff “would be taken and considered as showing the common source of title by plaintiff and defendant.”
The tract of land owned by Mrs. Doxey, and hereinbefore described, is very incorrectly platted in appellee’s brief, which plat is referred to to sustain the theory that there are three corners, either of which might have been meant for the beginning corner in the description of the 50 acres conveyed by her to plaintiff. A correct plat of said 423-acre tract will show that the line represented by the call S. 45° E. 2,103 varas should be called the northeast line; that the line represented by the call S. 45° W. 1,232.65 varas should be called the southeast line; that the southwest line is formed by the three calls N. 44% ° W. 1,374 varas, N. 45%° E. 245 varas, and N. 44%° W. 729 varas>; and that the call N. 45° E. 963.65 varas forms the northwest line. The place described in said deed to Mrs. Doxey as “iron stake for corner of land sold by John Allen Gano to Miller” is the only corner which can with certainty be described as the north corner of the survey. There are two corners on the southwest side of the tract, either of which might be called the west corner; but there is only one corner which would naturally be looked upon as the north corner. There can be no doubt concerning the corner at which the 50-acre tract is to begin, for in addition to the fact that it is described as the north corner of the 423-acre tract, and marked by an iron stake, the next call is S. 45° E. 1,051% varas to a stake on the northeast line of said 423-acre tract. The only line which will fit the description of northeast line is the line running S. 45 E. 2,103 varas, besides to run S. 45 B. from any other corner would not follow any line of the 423-acre tract. This can be easily seen if a correct plat of the 423-aere tract is drawn. It is therefore clear what land out of the 423-aere tract was included in the 50 acres sold plaintiff.
It appears that a public road runs along the 963-vara line of the 423-acre tract, which will be referred to as the northwest line. The land referred to in the deed to Mrs. Doxey as owned by Miller was acquired by defendant Rutland, and is referred to by one of the witnesses as Rutland’s land.
Plaintiff bought from Mrs. -Doxey through her son, who at the time the deed was made agreed to have the 50 acres surveyed off for plaintiff, and soon thereafter procured a surveyor to do so; he and plaintiff acting as chain carriers. Plaintiff soon thereafter fenced his land along the lines designated by said surveyor, his inclosure containing only about 41% acres. Plaintiff was not entirely satisfied with the survey, and was ignorant concerning the measurement of lands in Texas, but failed to make any resurvey until after defendant had purchased from Mrs. Doxey, and he had heard through defendant’s tenant that his inclosure did not' contain 50 acres.
There can be no doubt that, when such survey was made by the surveyor employed by Doxey, the point at which the north corner of plaintiff’s fence was found by the surveyor, Johnson, was recognized and pointed out as the north corner of the 423-acre tract. We therefore find that the owner of the land, through her duly authorized agent, recognized such point as the corner, and beginning at the same undertook to survey off to the purchaser the 50 acres. At that time the line between the 423-acre tract and the land owned by Miller was also pointed out by the owner. Now if the surveyor and the chain carriers had been accurate in their work the survey of the 50 acres, beginning at the point at which it was begun, would have embraced the S% acres sued for. That is fully established by the testimony of Surveyor John'-' son. Strong corroboration is afforded by the survey made for defendant Rutland, as shown by the calls of his deed. When defendant purchased, he knew, or at least was chargeable with notice by reason of the record of plaintiff’s deed, that the latter had bought from Mrs. Doxey 50 acres out of the 423-acre tract, and that he could only acquire title to the remainder. He and Mrs. Doxey had a survey made. They could have described the balance easily by excepting the 50 acres conveyed to plaintiff; but for some reason, not explained, they decided to make a purvey. The surveyor selected by them began at a point on the public road where there is a short turn in the road, called by witness Robinson, who carried the chaito, “a jog In the road.” By reference to the plat contained in the statement of facts, this point, designated by the witness as the southwest corner, is one of the two corners which are more accurately described as west corners. From this point the surveyor ran to plaintiff’s fence corner and around his inclosure to the west line of the land owned at one time by Miller, but at the time of the survey by defendant Rut-' land. The witness did not give the distances, blit they are furnished by' defendant’s deed. ■It appears from the deed that the surveyor *238in making his field notes did not call to begin at the point where he began his survey, but called to begin at a stake, the southwest corner of a 50-acre tract conveyed to -E. Davies by Mrs. M. X Doxey. His next call is S. 45° 43.' E. 1,010 varas to a stake, the southeast corner of said Davies 50-acre tract; then N. 44° 34' E. 231 varas to a stake, the northeast corner of said Davies 50-acre tract, in the west line of the X W. Rutland 600-acre tract. It will be noticed that these calls do not agree with those of the deed to Davies either in course or distance.
While the beginning corner is described as the corner of the 50-acre tract and not the corner of the inclosure, when the last call of the deed is considered and the testimony of Robinson, i't becomes evidence that the surveyor assumed that the corner of the fence was the corner of the 50-acre tract, and that the discrepancy in courses and distances apparently failed to apprise him of the fact that he was indulging in false assumptions. The surveyor was bound to know that his distance would not give 50 acres in the shape of a parallelogram, and when defendant accepted his deed he was chargeable with notice that the lines called for did not follow in course or distance those called for in plaintiff’s deed, which had been duly recorded. In addition, despite some discrepancies between the distances stated in Mrs. Doxey’s deed and those stated in his deed, which would tend to diminish the acreage, the land called for in his deed amounted to more than Mrs. Doxey was supposed to .own when the 50 acres are deducted from her original acreage. It is evident that this surveyor also accepted as the correct northwest line of the 423-acre tract the line running along the public road, which was accepted as the line of plaintiff’s land when it was pointed out and surveyed off to him.
It also appears from defendant’s pleading that he expressly alleges that Mrs. Doxey conveyed the entirety of her holdings in the three original surveys to him, including in said sale the strips of land now involved in this litigation, and that the surveyor made a skillful survey of the ground of the acreage so bought by him. This is in effect an admission that the northwest line adopted as the correct line when the surveyor for Mrs. Dox-ey undertook to run out the 50 acres is the correct northwest line of the 423-acre survey. Defendant admits he bought to the correct line, and the surveyor made a survey on the ground of the acreage purchased, which survey, as shown by the evidence and the deed, ran along the line contended by plaintiff to be the correct line. The defendant offered no testimony, and there is no evidence which shows that plaintiff had any knowledge of the survey made by defendant and Mrs. Dox-ey, or that he did anything whatever to mislead defendant, unless permitting his fence to remain on the wrong lines can be held to be such an act.
The judgment of the trial court must rest, upon a finding in favor of defendant in error upon one of the following issues: (1) Did plaintiff prove that the 8% acres sued for was a part of the 50 acres conveyed to him by Mrs. Doxey? (2) Did defendant show an agreed boundary line such as would bar plaintiff from claiming land outside of his inclosure, or show facts sufficient to estop plaintiff from claiming the 8% acres as against him.
We will now state our views on the issues raised.
In view of the evidence and defendant’s pleading, there can be no doubt that the 8% acres is within the boundaries called for in the deed from Mrs. Doxey to plaintiff. Appellee’s theory is that it would be necessary for plaintiff to show a survey from the northwest corner of the 128% acres conveyed by Gonzales to Olark, and called for in the deed to Mrs. Doxey in order to show the true location on the ground of the north corner of her survey. This was unnecessary, as we view it, for two reasons: First, the evidence and admission satisfactorily show that the point taken by the surveyor employed by Doxey to survey the 50 acres and by Surveyor Johnson to be the north corner of the 423-acre tract was in fact such corner. Second, the owner having, through her agents, her son and the surveyor, taken said point as the corner, and caused the purchaser to fence upon the assumption that it was the comer, could not be heard to say that she had sold different land from that pointed out. As'between her and the buyer, it must be taken as the corner. The defendant bought with knowledge that it was taken as the north corner of the 423 acres, and he bought upon the hypothesis that it was such corner, so he cannot be heard to say that plaintiff did not acquire title to the 50-acre tract properly run out from such corner as the beginning corner.
Surely there are no facts in the record which would have justified any finding of an agreement between Mrs. Doxey and plaintiff such as would preclude plaintiff from claiming to the lines called for in his deed. The purpose in making the survey was, not to locate a disputed boundary line, but to fulfill the agreement of the seller to survey off the 50 acres. That agreement carried the implied agreement to survey it correctly.
The man responsible for the correctness of the survey was employed by Mrs. Doxey. Her son and agent carried one end of the chain,' while plaintiff carried the other end. Plaintiff had only been in Texas a short, time, and the “vara” was not used in land measurements in the state from which he came. The surveyor made slight mistakes in the courses run, and serious mistakes were made in the distances. These facts are not-mentioned in avoidance of any agreement,, for there was no agreement. If it had been *239the purpose of Mrs. Doxey to make an agreement as to boundary line, her agent should have informed plaintiff that he had brought a surveyor employed by Mrs. Doxey, and wherever he located the line it would stay, regardless of whether it corresponded to the calls of the deed. An agreement can certainly not be fastened upon plaintiff by merely showing that he assisted in carrying the chain and driving stobs at the places designated by the surveyor. By means of the incompetency or gross negligence of her agents in fulfilling a duty assumed by her, through the agent who sold the land, she was enabled for about five years to use 8% acres of land which she had sold to plaintiff and bound herself to survey off to him. There can be no element of estoppel as to her.
The defendant, without making any inquiry whether the fence was on the line, and without being told by any one, so far as this record discloses, that such was the case, purchased the remainder of the 423-acre tract. A survey was made by a surveyor employed by him and Mrs. Doxey; and, taking the view most favorable to defendant, the surveyor was so negligent that he assumed that the fence marked the lines, when his own survey was sufficient to show him that such was not the case. Defendant although chargeable with notice of plaintiff’s boundaries, the deed being on record, accepted a deed which disclosed on its face that it was not excluding the full 50 acres. He urges in his pleading that he paid $45 per acre for the land owned by plaintiff. There is no proof that he did so; but, even if there was, we do not believe that under the facts of this case he can hold said 8% acres of land on the plea that plaintiff is estopped.
We conclude that the trial court erred, and that plaintiff in error should recover the land sued for by him.
The judgment is reversed, and judgment rendered that plaintiff in error recover of defendant in error the parcel of land sued for. i