This is an action of trespass to try title, and at the trial in the court below verdict and judgment went for the plaintiff, and the defendant has appealed. All the assignments of error, except one, are predicated upon the court's charge and the refusal of requested instructions. Under the other assignment appellant presents the proposition that in a boundary suit in form of trespass to try title, where the defendant, being in possession, pleads not guilty, a general verdict for the plaintiff, which does not specifically fix the boundary, and a judgment following such verdict, constitute reversible error, because such verdict and judgment do not settle the matter in controversy.
The court tried the case upon the theory that it was a boundary suit, and instructed the jury that, if they found from the evidence that lot No. 20 in block No. 78 in the Ft. Concho addition to the city of San Angelo is within the boundaries of survey No. 173, Fisher Miller survey, to return a verdict for the plaintiff, and, if they did not find that said lot is part of survey No. 173, to return a verdict for the defendant. The jury returned a general verdict for the plaintiff, and the court rendered judgment accordingly, describing the land recovered as it is described in the plaintiff's petition, which is as follows: "Lot twenty (20) in block seventy-eight (78) of Ft. Concho addition to the said city of San Angelo, and more particularly described by metes and bounds as follows: Beginning at a stake for southwest corner of lot three (3) in block seventy-eight (78) Ft. *Page 1175 Concho addition to said city of San Angelo, for southeast corner of this tract and northeast corner of lot twenty-one (21), said beginning point being 121 feet west and 50 feet north of rock set in ground for northeast corner of Millspaugh's addition and southeast corner of said block seventy-eight (78) of said Ft. Concho addition; thence with west line of lots three (3) to nineteen (19) inclusive, of said block seventy-eight (78) Ft. Concho addition, north 413.37 feet to stake in south line of right of way of Kansas City, Mexico Orient Railway Company of Texas; thence south 49 deg. 52 min. west with south line of same, 312.6 feet, to a stake for northwest corner of this lot, same being the northwest corner of said block seventy-eight (78); thence south with west line of said block seventy-eight (78) on east line of South Chadbourne street, 212.33 feet, to a stake, the northwest corner of lot twenty-one (21) in said block seventy-eight (78); thence east with north line of said lot twenty-one (21), 239 feet, to the place of beginning, said property above described being a portion of survey No. 173, Fisher Miller survey, in Tom Green county, Texas."
The plaintiff put in evidence a deed, dated February 26, 1907, from the Orient Land Company, by its trustees, which conveyed the land in controversy by metes and bounds to the plaintiff; another deed dated June 17, 1905, from C. A. Broome to the trustees of the Orient Land Company, conveying the land in controversy, described by the same specific metes and bounds, and also described as out of survey No. 173. Plaintiff also introduced in evidence a deed to it from the Ft. Concho Realty Company, dated May 23, 1910, conveying the same land by the same specific metes and bounds. It was agreed that on April 18, 1905, C. A. Broome acquired the record title to survey No. 173 and the south half of the J. Ebert survey No. 680. And plaintiff also put in evidence the following agreement: "For the purpose of expediting the trial of the above styled and numbered cause, the defendant waives proof by plaintiff of the intervening muniments of title (hereby agreeing for the purpose of this trial that same constitute a regular chain of title to the land described in plaintiff's petition, but defendant does not admit that the land described in plaintiff's petition is the land of which he is in possession) between the patent to sur. No. 173, Fisher Miller, and the following deeds to and judgment in favor of C. A. Broome, viz.: "(1) Deed dated April 18, 1905, from John H. James, independent executor of the estate of Annie James, dec'd, recorded in vol. 29, pages 253, 254, records of deeds of Tom Green county, Texas. (2) Deed dated April 19, 1904, from John H. James et al. and recorded in vol. 29, pages 404-406, records of deeds of Tom Green county, Texas. (3) Final Judgment in cause No. 1,476, styled C. A. Broome v. Evelyn James et al., recorded in minutes of district court, Tom Green county, Texas, in vol. G, page 242. By this agreement, however, defendant does not admit that blocks 50 and 68 Adams Wickes Add, and the other property described in the deed from C. A. Broome to Ft. Concho Realty Co. dated June 24, 1905, recorded in vol. 29, page 496, records of deeds of Tom Green county, Texas, are any part of survey No. 173. And by this agreement defendant does not intend to further limit the legal effect of the pleadings in the suit."
The plaintiff also introduced in evidence a patent from the state, dated August 18, 1859, granting to Henry F. Fisher and Burchard Miller 640 acres of land, known as survey 173, and specifically described in the patent by metes and bounds. The defendant did not present any written title, but relied upon his possession, and upon his contention that lot No. 20, in block 78 of Ft. Concho addition to the city of San Angelo, was not and is not any part of the Fisher Miller survey No. 173, and the trial court permitted him to litigate that question. In view of the agreement between the parties as set out above, we think that question was and is wholly immaterial. By the document referred to, appellant agreed that the muniments of title relied on by appellee constitute a regular chain of title to the land described in the plaintiff's petition; but he did not admit that he was in possession of that land, or that it was any part of Fisher Miller survey No. 173. In our judgment it was wholly immaterial whether the land described in the plaintiff's petition was a part of survey 173 or of some other survey. It was much more specifically described as being lot 20 in block 78 of the Ft. Concho addition to the city of San Angelo, and then still more specifically described by particular metes and bounds, calling, among other things, for corners and lines of other lots, for a certain line of a certain railroad right of way, and for a certain line of a designated street These descriptive calls so clearly identify the property as to render the statement that it was a part of Fisher Miller survey No. 173 wholly immaterial.
The lot referred to and specifically described in the plaintiff's petition is the land to which it was agreed that the intervening muniments of title, the production of which the defendant waived, constituted a regular chain of title. The defendant having entered into that agreement, it was immaterial whether the lot in question was on Fisher Miller survey 173 or on some other original survey; and as that agreement, together with other documentary evidence, showed that the plaintiff had title to the land sued for, and as the defendant showed no title in himself, the court should have instructed a verdict for the plaintiff. This being the situation, it is immaterial whether the court's charge on the question of boundary was properly *Page 1176 framed or not. And it is also immaterial whether or not refused instructions would have supplied omissions in the court's charge.
The verdict and judgment for the plaintiff was the proper result, and that judgment is affirmed.
Affirmed.