This is a suit by Paul Esser against Peter Kneupper and Henry Kneupper to recover approximately 97 acres of land, described by metes and bounds, in plaintiff’s second trial amendment, alleging that said land is a part of survey No. 798, B. E. M. & I. Company, in Kendall county, and inclosed within the fence of defendants. Peter Kneupper disclaimed, and Henry Kneup-per answered by plea of not guilty and pleas of title by limitation under the five and ten year statutes. Judgment was rendered that plaintiff take nothing by his suit.
We shall not undertake to copy all of the findings of fact filed by the trial court, as they are lengthy, and many are not attacked.
By agreement, questions as to title were eliminated, and the questions to be decided were: Is the land in controversy a part of survey 798, owned by plaintiff, or a part of survey 796, owned by Henry Kneupper? And, if it is a part of plaintiff’s survey, did Henry Kneupper show title to the land sued for under the 10-year statute of limitation? The trial court found in favor of plaintiff as to the first question and im favor of Henry Kneupper as to the second.
The findings of fact relating to the second question, in so far as they are material, are as follows:
“(6) I find that in the year 1902 the defendants fenced with a four wire fence all of survey No. 796, Mark Hodgson, including all the lands in controversy in this suit, and a few hundred acres of land owned by Peter Kneupper; that ever since said date, and especially since 1904, the defendant Henry Kneupper has had peaceable, continuous, and adverse and exclusive possession of all the land in controversy, using and enjoying the same, and grazing various kinds of stock thereon, either in person or through his father acting for him, but said Henry Kneupper did not reside on the same, and has continuously kept the fences in repair; that at the time it was fenced, in- 1902, the defendant Henry Kneupper was a minor.
“(7) I find that at the time the land was so fenced by the defendants, or some time just prior thereto, Peter Kneupper obtained permission from one Marion (T. M.) Gourley, who then owned said survey 798, in order to avoid a deep ravine on the north line of said, fence, to run the fence a bit north of where defendants claimed the north line of said survey No. 796 to be, which was permitted, an offset was made in the fence for a short distance, and thus was made to include a small parcel of land (about one acre) that the said Peter Kneupper admitted was part of survey 798, or the said Gour-ley’s land; at the time of this arrangement, which was verbal, the said Peter Kneupper told said Gourley that, in exchange for the said small parcel of land, he would give him, Marion Gour-ley, a half interest in said line of fence when he got ready to fence his said survey 798, or, if this was satisfactory, they would buy the land or move the fence as he (Gourley) might prefer.
“(8) I find that said Marion Gourley, in July, 1904, sold and conveyed said survey No. 798 to S. D. Givens, one of the plaintiff’s predecessors in title.
“(9) I further find that, so far as the evidence shows, no other or further agreement or understanding about said line of fence was ever had by the defendants, or either of them, with the said Marion (T. M.) Gourley or any one else, neither does the evidence show when survey No. 798 was fenced, but I find that it was under fence in 1912, and that Guss Ross, plaintiff’s vendor in the deed from him to plaintiff of date February 17, 1912, recites that he conveys to the plaintiff a half interest in said fence (is on his south line 798); that no statement, promise, or agreement of any sort was made by Henry Kneupper to any one about permission to place said part of the fence on survey 798.
“(10) I find that neither the pleadings of the plaintiff nor defendant, nor any evidence or plat offered on the trial' of this case, describes the small parcel or strip (about one acre) of land which Peter Kneupper got permission in 1902 from T. M. (Marion) Gourley to inclose when constructing the fence along what he and Henry Kneupper claimed was the north line of survey No. 796, so that the same could be specifically described in any judgment entered in the case.”
[1] By appropriate assignments appellant attacks the findings above set out, and the conclusion of law based thereon. As the court found in favor of Henry Kneupper, we will, of course, resolve all conflicts in his favor. It appears that when Peter Kneupper, acting for his son, Henry, decided to fence survey No. 796, he undertook to place the north fence on a straight line between two rock-piles, which he regarded as marking the northwest and northeast corners of survey No. 796, the pile of rocks which he took to mark the northwest corner being situated in the west line of survey No. 798, and described by reference to a Spanish Oak tree which bears S., 45° E., 20 varas therefrom. He stated, in answer to a question by the court, that he claimed from the rock pile where he built the fence across to the other rock pile; meaning, as is shown by the way the fence runs, the rock pile with the Spanish Oak bearing tree. He constructed the fence for a distance of 1,177 varas on a straight line running S., 89° 30' E., as shown by the field notes of the land inclosed by Kneupper’s fence sued for by plaintiff. He then constructed the remainder of the north-fence according to the following courses and distances: North, 60° 30'E., 26 varas; north, 20° E., 51 varas; north, 72° 30' E„ 28 varas; north, 82f° E., 127 viaras; S., 71° E.,- 64 varas, to the E. line of survey No. 798 ; S., at 49 varas, a stone mound from which a Spanish oak bears S., 45° E., 20 varas. The last call, which is a part of the east fence *510instead of the north fence, is given only to show the location of the stone mound with reference to the location of the fence. The straight line was departed from in building the fence because of the extreme difficulty of continuing the fence on a straight line on account of a creek or gully, and Kneupper encroached upon land which he recognized as belonging to Gourley, plaintiff’s remote predecessor in title. Before doing this he made the agreement with Gourley set out in the court’s seventh finding of fact. The ninth finding, in so far as it states that no other or further agreement was ever had by the defendants or either of them with Gour-ley or any one else, is supported by the evidence.
[2] It therefore appears that while Gourley was given to understand that Kneupper claimed the land south of the straight line running S., 80° 30' E., he did not claim the. land north of such line; and, as no further agreement was made such as would put Gourley on notice that said land was being claimed, it seems clear, and we so find, that as to said land there has been no adverse possession for such time as is necessary to establish limitation under the 10-year statute. It appears from the deed by Ross to plaintiff that Ross claimed a half interest in the fence, but it does not appear upon what he based his claim, or that Gourley ever made such a claim, or undertook to make any verbal sale of the small parcel of land in consideration of a half interest in the fence.
[3] As to the land lying south of a line run from the beginning corner of the fence S., 89° 30', to the west line of survey No. 798, the claim of Kneupper was adverse, as Gourley was bound to have known, taking Kneupper’s testimony as true. The court finds that Henry Kneupper made no promise or agreement concerning permission to place the fence on what was recognized as Gourley’s land, and that is true, but we regard it as immaterial. The agreement was made in his behalf by his father and in his presence. His father held possession of the land for him while he was a minor, and such possession as to the parcel inclosed under the agreement was permissive. Henry Kneupper failed to show adverse possession thereof for the statutory period.
[4] It appears from the tenth finding that, the court was probably moved to deny plaintiff said parcel of land solely on the ground that it was not described in the pleadings or the evidence so that a description thereof could be made in the judgment. We do not believe that fact would justify a judgment against plaintiff as to such parcel. The burden was upon defendant to show what portion of the land he was entitled to by virtue of the statute of limitation. The court erred in rendering judgment that plaintiff take nothing by his suit, as defendant failed to show title by limitation to such parcel.
In addition to the contention made by appellant that Henry Kneupper’s possession as to all the land in controversy was permissive, which has been discussed above, he contends that, even though the possession was not permissive, the claim on which limitation is based did not extend to the land in controversy, but only to the true boundary line of No. 796, and therefore no claim to any part of No. 798. The evidence supports a finding that the Kneuppers believed the true line to extend from the rock pile on the west, at which they began the fence, to the rock pile on the east, designated by reference to the Spanish Oak bearing tree; that they undertook to fence this line, and that Gourley knew they were claiming to the fence except at the place hereinbefore mentioned. The claim of ownership was up to the fence as located, and, even though the claim of title resulted because of a mistake as to the line, nevertheless there was testimony showing a clear intention to claim the land as far as it would have been inclosed had the fence been completed on the course used in building the first 1,177 varas.
Appellant’s claim is based upon variances in the Kneuppers’ testimony upon the two trials of the case, but upon this trial they testified that they claimed to the fence, except as to the small parcel recognized as Gourley’s, and a consideration of their testimony as a whole shows that such was their claim, although upon cross-examination on the former trial Peter Kneupper testified that they claimed no part of No. 798, but only 796, and Henry Kneupper stated that he had always claimed just the land called for in his deed from Elbel, but at the same time said he claimed the fence to be the north line of No. 796.
[5] The court was authorized to find that they claimed all land lying south of the 1,177 varas of fence and a line projected from the said part of the fence to the east line of the survey on the course used in constructing said fence. The facts in the case of Shaw v. Windham, 155 S. W. 636, relied on by appellants, were very different, taking into consideration the testimony believed by the respective courts.
[6] The further contention is made that the possession was not adverse for the reason that the land in controversy is contained in an inclosure containing land owned by Peter Kneupper as well as that of Henry Kneupper, and such inclosure was jointly used by both of them for grazing purposes. The land in controversy was claimed by Henry Kneupper and not by Peter Kneupper. It was inclosed under the belief that it was a part of Henry Kneupper’s survey, with the exception of the small parcel recognized to be a part of Gourley’s survey. The use of such land by Peter Kneupper was in subor*511dination to Henry Kneupper. The possession and use were sufficient under the statute to vest title by limitation in Henry Kneupper. Watkins v. Cates, 24 Tex. Civ. App. 384, 59 S. W. 1123; Parker v. Newberry, 83 Tex. 428, 18 S. W. 815; Glover v. Pfeuffer, 163 S. W. 984.
The judgment of the trial court is reversed in so far as- it affects plaintiff and Henry Kneupper, and this court, proceeding to enter such judgment as should have been entered by the trial court, adjudges that plaintiff recover of defendant Henry Kneupper ■the small parcel of land out of the tract in controversy which lies north of the continuation of the line described in the field notes of the land in controversy as running S., 89° 30' E., 1,177 varas, and that as to the remainder of the land in controversy plaintiff shall take nothing by his suit. It is further adjudged that Henry Kneupper be allowed 30 days from the date this judgment is certified to the trial court for observance, in which he may withdraw his fence situated on the parcel of land awarded to plaintiff, and place same on the line of the land herein awarded him. All costs incurred in the trial court, except those incident to making Peter Kneupper a party to the suit, are adjudged against Henry Kneupper, as well as the costs of appeal. The judgment, in so far as it relates to Peter Kneupper, is not involved in this appeal, and will not be disturbed.
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