On Motion for Rehearing.
Defendant in error contends, in effect, that the only evidence sufficient to establish the location of the north corner of the 423-acre tract would be that of a surveyor showing that he first located the beginning corner of said tract by surveying from the corner of the Gonzales survey, and then correctly ran the lines between said beginning comer and the north corner.
As we view the matter, the plaintiff having shown title to the 50 acres sued for by him, the location of such land on the ground may be shown by any competent evidence sufficient to enable the court to identify the boundaries thereof.
We will now take up the salient facts in their regular order. Mr. Doxey, as the agent for his mother, sold plaintiff 50 acres of land, and made the deed for it, which was accepted upon the condition that Doxey was to have this land surveyed off for plaintiff. He brought Surveyor Benjamin to survey the land, and it was surveyed off by him, with Doxey and plaintiff acting as' chain carriers. Plaintiff drove stobs at the corners and placed his fence on the lines indicated by the survey. Plaintiff lived on the land before the survey was made. Surely plaintiff had no intention of buying land covered by or cut off by the public road, and Doxey had no intention of selling any such land or land covered by the survey lying northeast of the 423-acre tract. Benjamin must have taken steps to locate the north corner of the 423-acre tract, or have known its location. Doxey either pointed it out or accepted its location as indicated by Benjamin. Plaintiff constructed his fence upon the lines, which were too short to inclose 50 acres. The next survey was made by defendant’s surveyor, whose duty it was to determine the lines of the 423-acre survey, excluding, however, the 50 acres sold plaintiff. He did not begin at the point now contended by defendant to be indispensable, but began, as testified by Robinson, “at the southwest corner, at a jog in the road,” and then ran up to the corner of plaintiff’s fence. This surveyor, it appears, found the northwest line to be the same as the one on which plaintiff’s fence was constructed. This is fully and clearly shown by the calls prepared by him for defendant’s deed. The southwest corner meant was doubtless the one which is shown on the plat. We find that the surveyor for Mrs. Doxey and the surveyor for defendant, and also Mr. Doxey, the agent for the owner of the 423-acre tract, all recognize the line on which plaintiff’s fence was constructed as the correct northwest line of the survey of 423 acres.
We will now consider the evidence relating to the location of the line running S. 45° E. This line is called for in the field notes of the 50 acres to be the same as the northeast line of the 423-acre tract. The land lying east of said line is called for in the deed to Mrs. Doxey for said 423-acre tract to be the land sold by Gano to Miller, and the evidence discloses that it was afterwards acquired by defendant Rutland. The correct location of that line does not seem to have been in doubt. As the deed from Mrs. Doxey to plaintiff called to begin at the north corner of the 423-acre tract, and for the northeast line thereof to run cm the same course as the northeast line of the 423-acre tract, it is evident that Doxey and his surveyor, Benjamin, must have determined upon the location of said line. They located it, as shown by plaintiff’s testimony, at the' place where plaintiff contends it is. Now, when defendant had his survey made, the surveyor ran along the southwest and soumeast lines of plaintiff’s land, and then ran to the south*240east public road. This is shown by witness Robinson’s testimony. The field notes of the deed to defendant show that the surveyor accepted as correct the northeast line contended for by plaintiff and surveyed out to him. This is shown by a comparison of his field notes with the survey made by witness Johnson, which will now be discussed.
Before doing so, we will state that, after plaintiff had received information that there was a shortage in his tract, he employed Mr. Guerringer to survey for him. The survey was made and iron pipes driven at the corners. The pipes on the east line were in line with the fence that was there, “the line between the land Doxey sold to Rutland, and another tract of land Mr. Rutland bought.” This was testified to by plaintiff, and indicates there was a fence between the 423-acre tract and the .600-aere tract bought by Rutland, being also referred to as the Miller land. Mr. Guerringer did not. testify; but Mr. Johnson, afterwards employed by plaintiff to make a survey, testified that his survey showed' the pipes to be located correctly. Johnson also surveyed biit the lines on which plaintiff’s fence was situated, and his distances correspond so clearly to those stated in the deed to defendant that it is evident that defendant’s surveyor accepted as the correct northeast line of the 423 acres the line on which plaintiff’s fence is located. Johnson also surveyed the entire northwest line of the 423-acre tract, and found that the distance of the northwest line called for in the deed to Mrs. Doxey of the 423 acres corresponded to the distance between the two points he took to be the corners marking the ends of said line, one of which was the north comer of plaintiff’s fence; also, that the calls made in defendant’s deed correspond to the actual distances along said northwest line.
The theory advanced in behalf of appellee is that perhaps appellant’s northwest line should be located further northwest and his northeast line further northeast, and that therefore he has not proved himself entitled to the parcels lying southwest and southeast of his inclosure which taken with the inclosed land would give him his 50 acres. That theory is advanced despite the fact that on the: northwest side the land inclosed is bounded by a public road and on the northeast side by land which all parties recognize as owned by defendant, and as no part of the 423-acre tract. If -the' northeast line should be located further northeast, the defendant ought to know it, and ought to pay Mrs. Doxey for more land than her deed calls for. If' the northwest line is too far south, defendant got -more land than his deed calls for. The defendant did not testify, nor did he produce his surveyor or introduce any testimony tending to show that any doubt existed-.with reference to the location of the lines. Doxey should have known something concerning the lines, but although on the day of the trial he could have been procured as a witness, as shown by the record, he was not placed upon the stand. Doxey had his surveyor adopt the lines contended for by plaintiff, or acquiesced in the correctness of the survey made by his surveyor. These lines were marked by plaintiff, and Surveyor Johnson took them as the basis for his survey. Defendant’s surveyor should have learned of any mistake in the location of the lines, but he adopted the same northwest line and the same northeast line as contended for by plaintiff. It appears that all parties who owned the land and all surveyors who undertook to survey had no- doubt about the location of the northwest and northeast lines, and plaintiff seeks to recover 50 acres run out from the intersection of said lines, which Doxey must have pointed out as the true north corner, or have acquiesced in when located by his surveyor. There is not a particle of evidence which tends to show that the corner is located elsewhere than as contended by plaintiff.
We find no reason for changing our conclusion that- the evidence showed, without contradiction,' that the parcel sued for was a part of the 50 acres embraced within the boundaries mentioned in plaintiff’s deed.
Defendant in error advances, with considerable confidence, the theory that he was entitled to a judgment upon the pleadings, but seems to be in doubt whether his pleading constituted a cross-action, and plaintiff’s failure to file a denial entitled him to judgment, or whether it was merely an answer urging affirmative defensive matter, to which a denial is interposed by statute, but which he feels entitles him to a judgment because plaintiff failed to plead in avoidance thereof that the lines between him and Mrs. Doxey were the result of mistake. We were of the opinion that it was not a cross-action, and that the statute interposed a general denial, and that defendant failed to ¿rove anything sufficient to constitute a defense, so there was. no necessity for pleading any matter in avoidance. We are still of the same opinion. The pleading is in the usual form of an answer setting up affirmatively defensive matter. There is nothing in the body thereof or by way of indorsement which would indicate that defendant sought to present a cross-action. The prayer is as follows:
“Wherefore, defendant prays the court that plaintiff take nothing by his suit and that defendant go hence without day and recover of plaintiff all costs in this behalf expended. Defendant further prays that by judgment of this court he be forever quieted in the title, possession and enjoyment in the lands and premises sued for.”
Wte think it is clear from the following decisions by ■ the Supreme Court that this *241pleading should be treated as simply an answer and not as a cross-action: Short v. Hepburn, 89 Tes. 622, 35 S. W. 1056; Hoodless v. Winter, 80 Tex. 638, 16 S. W. 427; Free v. Burgess & Son, 104 Tex. 31, 133 S. W. 421; Ellis v. Singletary, 45 Tes. 27.
This being the case, the statute interposed a general denial in behali of plaintiff. Bauman v. Chambers, 91 Tex. 108, 41 S. W. 471. This placed the burden on defendant of proving his defense of agreed boundary line and estoppel. He failed to do so. The evidence failed to show any facts which would preclude plaintiff from recovering the land sued for as against Mrs. Dosey, and failed to prove that defendant bought on the faith of any representations by plaintiff, or that he even paid out any money because of being misled by the location of plaintiff’s fence, or even that he was misled in any way. For further discussion of this issue, we refer to the original opinion.
We were in error in treating the admissions made in defendant’s pleading as an additional ground for supporting the conclusion that the land sued for was shown to be a part of the 50 acres. Such admissions could not aid plaintiff, as they followed a plea of not guilty, which made it incumbent on plaintiff to show a prima facie right to the property. Garrison v. Richards, 107 S. W. 861, and cases cited.
The motion for rehearing is overruled.