On Motion for Rehearing.
[2] Both the appellant and the appellee have filed motions for a rehearing in this case. The appellant insists that we erred in holding that the judgment recovered by Stratton against the unknown heirs of Find-ley and Rowe was sufficient, in connection with the remaining evidence, to show prima facie a title in the appellee. We have concluded, upon further consideration, that this contention is sound, and that the assignment based upon it should be sustained.
The appellee was the plaintiff in the court below, and upon him rested the burden of establishing his title to the land in contro*934versy. This lie endeavored to do in the following manner: He offered in evidence a patent from the state to John Findley, dated July 20, 1845, for a survey of which this tract is a part; he next introduced a deed from R. O. Lusk to William A, Eaker, dated April 20, 1846; he followed this with a chain of paper title to E. L. Stratton, from whom the appellee purchased in October, 1913. Presumably for the purpose of supplying the missing link between Findley and Lusk, he offered in evidence the original petition and the judgment rendered in a suit filed by Stratton October 24, 1913, against the unknown heirs of John Findley and Joseph Rowe. That petition recited that the petitioner, Stratton, was the owner of the land in controversy, describing it as a part of the Findley survey; that he purchased it in August, 1908, for a valuable consideration, and was the owner and holder by and through a regular chain of title; that there is a break in the title, in that the records of Harrison county do not show how or by what means the title became vested in Robert O. Lusk, who sold to W. A. Eaker, but that in truth and in fact Lusk purchased the property from Joseph Rowe, who purchased it from John Findley, the original patentee. The petition further alleges that the plaintiff did not know what claim the defendant had upon the property, but that the deeds from Joseph Rowe to Robert O. Lusk and from John Findley to Joseph Rowe were not of record in Harrison county and' are' lost. It also alleged that there is a recital in the deed from Lusk to Eaker that the land belonged to Lusk by virtue of a purchase by Joseph Rowe from John Findley; that the deeds are lost, and the plaintiff was unable to prove the recital by the deed records of Harrison county. He prays for citation against the unknown heirs of John Findley and Joseph Rowe, and for a judgment vesting title to the property ■ in himself. The judgment rendered in that case is thus recorded in the statement of facts:
“The judgment was offered in evidence, and recites: ‘The defendant was cited by publication, and counsel duly appointed as required by law, and title vested in E. L. Stratton in fee simple, being the same property described in plaintiff’s petition.’ ”
That judgment was admissible in this case only for the purpose of proving its rendition and the legal consequences which resulted therefrom. It was not evidence of the facts recited in the petition — that is, that Findley had conveyed to Rowe and Rowe to Lusk. McCamant v. Roberts, 66 Tex. 260, 1 S. W. 260; Boehme v. Sovereign Camp, W. O. W., 98 Tex. 380, 84 S. W. 422, 4 Ann. Cas. 1019; Pratt v. Jones, 64 Tex. 694. Upon its face this judgment invested Stratton, not Lusk, with whatever title the heirs of Findley and Rowe held at the date of its rendition. Assuming that the lapse of time was sufficient to justify the presumption that Findley was dead when that suit was filed, the judgment would constitute prima facie evidence of title in Stratton, from whom the appellee purchased, It was not to be taken as evidence that Lusk had acquired any title.
[3, 4] The court found as a fact that in July, 1876, James Findley, John Findley, and Adeline Findley, the only heirs at law of John Findley, patentee, filed a suit in the district court of Harrison county against W. H. Woodley and W. L.. Woodley, in the form of an action of trespass to try title, to recover the entire John Findley headright;. that 'in November, 1879, a trial of that suit resulted in a judgment in favor of the defendants that the plaintiffs take nothing. The appellant offered this judgment in evidence in the trial below as proof that at the date of the rendition of the judgment in favor of Stratton against the unknown heirs of Findley and Rowe those heirs had no title which could be vested in Stratton. The legal effect of the judgment rendered in 1879 was to divest the heirs of Findley of whatever title they had at that time, and that judgment was binding upon them and all who thereafter deraigned title through those heirs. Article 7758, Rev. Civ. Stat.; Hoodless v. Winter, 80 Tex. 638, 16 S. W. 4271 French v. Olive, 67 Tex. 400, 3 S. W. 568. It is thus conclusively made to appear that, at the time Stratton sought to recover the title from the Findley and Rowe heirs, those heirs had no title; hence the judgment rendered ih his favor was ineffectual as a link connecting him with the original patentee. If, however, he should be able to establish upon another trial, by other legal evidence, that John Findley, Sr., had conveyed to Joseph Rowe, and that Joseph Rowe had conveyed to Lusk, as alleged in Stratton’s original petition, that would, be sufficient to establish his chain of title.
The appellee insists that we erred in remanding this case for a trial upon the issue of the appellant’s right to recover upon his defense of limitation. It is argued that the appellant, having based his adverse claim upon the deed, should not be permitted to extend his constructive possession beyond the boundaries named in his deed. Attention is called to the fact that in the case of Porter v. Miller, cited in the original opinion, the proof showed that the deed relied on by Mrs. Miller, the adverse claimant, contained a description which included the land there in dispute. That case was first decided by the Commission of Appeals and is reported in 76 Tex. 593, 13 S. W. 555. On a motion for a rehearing (see 76 Tex. 593, 14 S. W. 334) the Supreme Court modified the judgment of the Commission of Appeals, holding that the evidence of a title by limitation was sufficient to require that issue to be submitted to the jury, and the cause was reversed and remanded for another ’trial. The case was *935again before the Commission of Appeals, and is found reported in 84 Tex. 204, 19 S. W. 467. It there appears that the facts as finally developed on the last trial show that the deed to Seneschal, the father of Mrs. Miller, whose adverse occupancy was the basis of her claim of title by limitation, did contain a description which might be construed as including the land then in dispute, and it seems that the Commission of Appeals based its affirmance of the judgment upon that fact. But in the opinion of Justice Gaines, reported in 76 Tex. 593, 14 S. W. 334, no such contingency seems to have been regarded as necessary. He says:
“It may be true that the possession of Senes-chal (Mrs. Miller’s father) catínot be extended by construction beyond the actual limits of the Moore survey. His deed from Levi calls for the west boundary line of the Moore survey as the west boundary of the land conveyed to him, and there are no calls either for natural or artificial objects in the deed which indicate that the west line was to be other than the true boundary of the original survey. Hence, if Seneschal did not have possession of any part of the land lying between the true line of the Moore and the line surveyed by Trott as that line, the statute of limitation cannot avail the defendants in this suit; but, if his possession did embrace any part of this disputed strip, it seems to us that his title to all the land claimed by him became perfect by virtue of the 10-year statute. The evidence makes it clear, we think, that Seneschal believed that his deed conveyed to him all the land to the line run by Trott, and leaves but little, if any, doubt that he claimed to that line. The statute then in force - gave title to a naked possessor to 640 acres of land, including his improvements (Pasch. Dig. art. 4624), and we see no reason why Seneschal was not entitled to its benefit to the extent of his well-defined claim, provided he had actual possession for the requisite period of that part of the land claimed by him which lies west of the true line of the Moore survey.”
The foregoing language makes it plain that the Supreme Court reversed this case, not upon the assumption that the disputed tract was within the calls of Seneschal’s deed, but because the facts indicated that he had probably occupied a portion of it under a claim to a well-defined boundary.
The approval by the Supreme Court of the last judgment of the Commission of Appeals is not to be taken as an indorsement of the grounds upon which that court’s affirmance was based; for that conclusion was correct upon either view of the law. The rule which limits the constructive possession of one holding under a deed to the lines described in his field notes, has no application in a case of this character. No part of the land here in dispute is within the calls of the appellant’s deed. The proof shows that when the boundary line was correctly located the land in controversy was a part of an entirely different tract from that covered by his deed. The fact that the appellant contended that his deed included the.land did not lessen the legal consequences of his adverse possession. If the true owner has actual notice that his title to a definite boundary is disputed, or if the adverse occupant accompanies his possession with acts evidencing a hostile claim which are reasonably calculated to give such notice, there is no logical reason for withholding from that possession the legal consequences which ordinarily flow from adverse occupancy based upon possession alone. The fact that the adverse claimant believes that his deed covers the land does not, as a matter of law, destroy the constructive possession which under a naked possession might extend to a well-defined boundary.
We are therefore of the opinion that the appellee’s motion should be overruled, and that the appellant’s motion should be granted, and the case is reversed and remanded generally for a new trial.