This is an action of trespass to try title, brought by G. C. Smith against Rosina Ludtke, the widow, and the other defendants, the children and heirs at law of August Ludtke, to recover the title and possession of 15 acres out of lot 16 and 10 acres out of lot 15 of the Harris & Wilson two-league grant in Harris county. Defendants relied upon the defense of limitation under the 10-year statute, which they pleaded. A trial before a jury resulted in a verdict and judgment for plaintiffs, from which the defendants have appealed. The court charged the jury, in part, as follows:
“With reference to the 10-acre tract, the record evidence introduced before you shows that by reason of a former judgment and injunction proceedings thereunder, the latter of which is still in force, the defendants cannot claim title thereto by limitation, and you will consider this case only with reference to the tract of 15 acres.”
*267This charge was duly excepted to, and is assailed by appellants’ first assignment of error. The defendants requested the court to give their special charge No. 1, which was refused, and the second assignment is based upon the refusal of the court to give it to the jury, viz.:
“If you believe from the evidence that the defendants and those under whom they claim had and held peaceable and adverse possession (as those terms have been defined in the main charge of the court) of a tract of 10 acres of the lower part of lot 15, being- the same property particularly described in the plaintiffs’ petition herein, and in controversy herein, cultivating, using-, or enjoying the same for a period of more than 10 years preceding the institution of this suit, then you will return your verdict in favor of the defendants for the said 10-acre tract.”
There was evidence sufficient to raise the issue of title in defendants under the 10-year statute of limitations, and the issue should have been submitted to the jury, unless the court correctly ruled that this defense was not available to them by reason of the rendition of a former judgment and the injunction proceedings thereunder.
[1] The history of the former judgment and injunction proceedings referred to, as we gather it from the briefs of the parties, is this: On August 22, 1871, B. O. Franklin and Jas. T. D. Wilson brought suit against August Ludtke for partition of lot 15, and partition was ordered. In the partition the eastern half of lot 15 was decreed to Franklin and Wilson, and the western half to Ludtke. On December 3, 1877, Wilson, alleging that Ludtke was trespassing upon that parcel of land decreed to Franklin and Wilson in the partition suit, brought suit against Ludtke for said parcel, and recovered judgment therefor, and the court issued a perpetual injunction, restraining Ludtke from again trespassing upon that portion of land. In November, 1897, Wilson again sued Ludt-ke for the recovery of the parcel set aside to Franklin and Wilson in the former decree, and recovered a judgment; and under this judgment a writ of possession was issued in favor of Wilson, and executed by the sheriff of Harris county on August 13, 1898, whereby Wilson was placed in possession of the land and the defendants dispossessed. In this last suit Ludtke was again enjoined from ever again trespassing upon the land. Some time prior to this last judgment Glenn M. Harris brought suit against Wilson for an undivided half interest in lot 15, making Ludtke a party defendant. In this suit Ludtke recovered judgment for the western half, which had been partitioned to him in the suit of Franklin and Wilson against Ludtke, and Harris finally recovered judgment against Wilson for 10 acres of the eastern half, which is the land in controversy. Plaintiff Smith deraigned title to the 10 acres by purchase from Glenn M. Harris. Evidence was introduced on the trial tending to prove, and sufficient to raise the issue of, title of the Ludtkes to the 10 acres by actual adverse possession under the 10-year statute begun after the rendition of judgment against August Ludtke in 1898, and after the granting of the injunction and continuing up to the filing of this suit in 1913. In 1909 Ludt-ke was cited for contempt for violating the injunction by again entering upon the land, but no hearing was ever had thereon and no orders entered therein. We may assume, for the purpose of this opinion, that as Harris was the joint owner with Wilson of the eastern half of lot 15, the judgment recovered by Wilson against Ludtke therefor inured to the benefit of Harris as a joint tenant, and also inured to the benefit of the plaintiff Smith by reason of his purchase from Harris. The question then remaining to be determined is, Did the recovery of the land by Wilson from Ludtke in the various suits mentioned, and the issuance of the injunctions referred to, operate to prevent the running of limitations in favor of Ludtke upon his thereafter entering into the actual possession of the land notwithstanding the judgments and injunctions? We think we must answer this question in the negative. It has often been held that a vendor, by executed conveyance, who remains in possession of land, claiming it as his own, without notice other than possession, may acquire against his vendee a title by limitation. Smith v. Montes, 11 Tex. 24; Harn v. Smith, 79 Tex. 310, 15 S. W. 240, 23 Am. St. Rep. 340; T. & P. Ry. Co. v. Maynard, 51 S. W. 255. In Pendleton v. McMains, 32 Tex. Civ. App. 575, 75 S. W. 349, in which a writ of error was denied, it is held by the Court of Civil Appeals of the Fourth District that adverse possession of land for 10 years establishes a title against one whose title is derived from a judgment, though the adverse possessor be the defendant in such judgment. In writing the opinion of the court Judge Fly said:
“More than 13 years had elapsed after the rendition of the judgment before this suit was instituted, and during all those years defendants in error had been in possession of the land, and claiming title to it against the world. There is no peculiar sacredness in a title to land obtained through a judgment that lifts it out of the scope and purview of statutes of limitation, and, if the possession be adverse for 10 years, whether it be by the defendant in the judgment or any cne else, it will perfect a title.”
This language is quoted with approval by' our Supreme Court in Thomson v. Weisman, 98 Tex. 174, 82 S. W. 503. It is clear, then, it seems to us, that notwithstanding the judgment against him for the 10 acres in question, if August Ludtke thereafter re-entered into the actual possession of the tract, claiming it as his own, and that he and those who claim under him cultivated, used, or enjoyed the same for the full period of 10 years after the rendition of the last judgment in favor of Wilson and against him, such possession ripened into a title which *268could be successfully interposed against plaintiff in this suit. It does not appear that the injunction was ever enforced, or that through it August Ludtlce, or those claiming through him, were ever dispossessed. We think, in view of this fact, that the mere existence of a judgment granting an injunction no more prevented the possession of the i/udtkes from being adverse than did the judgment against him for the title and possession. And it makes no difference that in 1909 Ludtke was cited for contempt for disobeying the injunction, since no further action was taken in that matter, nor any order entered therein. Nor did the injunction have the effect of placing the land in cus-todia legis, as in the case of McAllen v. Crafts, 139 S. W. 41, where the possession asserted as adverse was taken and held under a writ of sequestration. We think, therefore, that the court should have submitted the defense of 10-year limitation pleaded by the defendants, and that the failure to do so was error which requires a reversal of its judgment.
[2J The third assignment complains that the court erred in giving the plaintiffs’ special charge No. 3. Thus far the discussion has been in reference to the 10 acres out of lot 15. The special charge was asked with reference to the 15 acres out of lot 16. No objection was made to the giving of the special charge in the defendants’ motion for a new trial, nor was the giving of it assigned as error, either in the motion for a new triai or any assignment of error filed in the court below. This court has no authority to revise a judgment of the trial court except on a matter distinctly specified by an assignment of error. Deutschman v. Ryan, 148 S. W. 1140. The assignment cannot be considered.
[3] The fourth assignment complains that the verdict of -the jury as to the 15 acres out of lot 16 is contrary to the evidence, in that the undisputed evidence shows that the defendants had adversely occupied, used, and enjoyed certain parts of the 15-acre tract for inore than 10 years before the filing of this suit, by, a pigpen and slaughterhouses and substantial inclosures, and that they were entitled at least to the parts so actually inclosed by such improvements. The evidence fails to disclose any sufficient description of (he portion .of the tract adversely used for a pigpen,' slaughterhouses, or that portion claimed to have been inclosed, to enable the jury to segregate such portions from the larger tract. We overrule the assignment.
The judgment in favor of the plaintiff for the 15-acre tract is affirmed, and because of the error indicated, the judgment in favor of plaintiff for the 10-acre tract is reversed, and the cause remanded for further proceedings in accordance herewith.
Affirmed in part. Reversed and remanded in part.
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