(after stating the facts as above). The court below found that the 15 acres in controversy was a part of the 101 % acres decreed to Hall (appellant’s vendor) in 1913, in suit No. 3433. Appellant’s contention is that the judgment therefore should have been in his favor for the 15 acres, notwithstanding appellee’s vendors had acquired title thereto by force of the 10 years’ statute of limitations before the decree in said suit No. 3433 was rendered. The contention is predicated upon the view that as between appellant and appellee the decree in suit No. 3433, unless and until set aside in a proceeding for that purpose, was conclusive of the fact that the former owned the 15 acres.
We would be inclined to think the contention should be sustained and the judgment reversed but for the further finding of the court (which is not in any way attacked by appellant) that the line agreed upon in 1885 between the then owners of the 203% acres, according to which the 15 acres belonged to appellee’s grantors, “was the agreed boundary line between said owners and their vendees of the respective parts thereof held by appellant and appellee until the institution of this suit.”
The issue made by the pleadings in suit No. 3433 was as to title only, and the judgment did not determine the location on the ground of the tracts adjudged to the respective parties. In this case, as tried, appellant did not question the title of appellee to the land adjudged to his grantor in suit No. 3433, and appellee did not question the title of appellant to the land adjudged to his grantor in that suit. The real controversy was as to the location on the ground of the boundary line between the tracts they respectively owned. As that was a question not determined in suit No. 3433, the judgment therein was not res adjudicata between the parties. Benavides v. State (Tex. Civ. App.) 214 S. W. 568. Therefore the court below had a right to determine it without reference to that judgment. There was testimony that the location of the boundary line was uncertain in 1885, when, the court found, appellant’s and appellee’s grantors, respectively, agreed on its location. There was no testimony that the location of the true line was ever thereafter before the institution of this suit less uncertain, and the finding, as stated above, was that the ven-dees (among whom were appellant and ap-pellee) of the parties who agreed' on the line in 1885 agreed, until this suit was instituted, that the line so established was the boundary line. If the uncertainty as to the true location of the line existed at the time and after the judgment in suit No. 3433 was rendered, there can be no doubt about the right of the then owners of the land, whether their grantors had ever done so or not, to establish the boundary line between them. If they could have done that, they certainly could have agreed, as the court found they did, that the line established by their grantors was the boundary line between their respective tracts of land.
The judgment is affirmed.