HUNNICUTT
v.
PEYTON.

*346 Mr. Levi W. Goodrich and Mr. Matthew H. Carpenter for the plaintiffs in error.

Mr. Samuel R. Fisher and Mr. Philip Phillips, contra.

*352 MR. JUSTICE STRONG delivered the opinion of the court.

This is an action of ejectment brought to recover the possession of four leagues of land on the east bank of the Brazos River, known as the Gregorio Basquez survey of four leagues. The defence set up against the claim of the plaintiffs was the general issue by which the title of the plaintiffs was denied, as also the wrongful entry of the defendants. The Statutes of Limitation were also pleaded.

At the trial in the Circuit Court a verdict was obtained by the plaintiffs, upon which a judgment was entered, and the defendants have brought the case here, assigning several errors to the rulings in the lower court.

*353 Before proceeding to examine them, it is necessary to notice an objection interposed by the plaintiffs against their being considered at all.

The verdict was rendered on the 17th of February, 1877, and judgment thereon was entered on the same day. On the 19th of the same month the defendants moved for a new trial. This motion was overruled on the 20th. Two days afterwards (on the 24th) the writ of error was sued out, tested on that day. It does not appear when the writ was filed or served. A citation was also issued on the 24th of February and returned by the marshal, received in his office September 3, and served the same day.

The defendants' bills of exception upon which their assignments of error are founded were signed by the judge on the 28th of February, and filed in the cause on the 1st of March next following. This was during the term at which the cause was tried, but eleven days after the verdict was rendered. The plaintiffs' counsel was present when the bills were signed, and objected on the ground that they were not presented for signature within the time limited by the rule of the court. That rule was as follows: "No bill of exceptions will be signed unless presented to the judge within five days after the close of the trial, unless further time be allowed by the court." No objection was made to the correctness of the bills or to their signature because a writ of error had been sued out.

On the 1st of March an order was made by the court extending the time for presenting and filing the bills until that day (the plaintiffs objecting to the order), and accordingly the bills were then filed.

It is now insisted that the bills of exceptions cannot be considered a part of the record, and that they are not properly here for review. For this several reasons are advanced, the first of which is that the presentation to the judge was not in the time prescribed by the rule of the court. But the rule requiring the presentation of bills for the signature of the judge within five days is not a rule which controls his action. He may depart from it in order to effectuate justice. Stanton v. Embrey, 93 U.S. 548. It is a direction to the parties, and it expressly reserves the power to enlarge the time. It is no *354 doubt necessary that exceptions should be taken and, at least, noted before the rendition of the verdict; but the reduction of the bills to form, and the signature of the judge to the bills, required for their attestation, or, as said in the Statute of Westminster, "for a testimony," may be afterwards, during the term. In practice it is not usual to reduce bills of exception to form and to obtain the signature of the judge during the progress of the trial. Nor is it necessary. The Statute of Westminster did not require it. It would greatly and uselessly retard the business of courts were it required that every time an exception is taken the progress of the trial should be stayed until the bill could be reduced to form and signed by the judge. For this reason it has always been held that the exception need only be noted at the time it is made, and may be reduced to form within a reasonable time after the trial is over. United States v. Breitling, 20 How. 252; Stanton v. Embrey, supra; Dredge v. Forsyth, 2 Black, 564. The time within which the signature of the judge must be applied for, if within the term, is left to the discretion of the judge who noted the exception when it was made. It may depend much upon the nature of the bills. Some require much more time for preparation than others. It is true a judge cannot be permitted to make up a statement of facts, after the writ of error is issued, upon which the case shall be heard. Generes v. Bonnemer, 7 Wall. 564. That is quite a different matter. But when an exception has been taken at the trial and noted, reducing the exception to form afterwards and attesting it is not making a new case: it is merely verifying the case as it appeared on the trial.

It is further urged by the plaintiffs that the defendants waived their exceptions by suing out the writ of error before the signature of the judge was obtained. In support of this objection we are referred to Tidd's Practice, 863, where it is said, "If a party who at the trial of a cause has tendered a bill of exceptions, bring a writ of error before he has procured the judge's signature to such bill, he thereby waives the bill of exceptions, and will not be permitted by the court of error afterwards to tack or append the bill of exceptions to the writ of error." 4th Am. ed., from the 9th London. For this the *355 author relies on Dillon v. Doe dem. Parker, 1 Bing. 17; S.C. 11 Price, 100. In that case a year had elapsed after the writ of error had issued. The transcript of the record had gone into the Court of Errors. The common assignments of error had been made and issue had been joined before the plaintiff in error moved the court in error to compel a settlement of the bill in the lower court, and asked that it might be appended to the writ. In response to this motion, it was observed by two of the justices that the proper course would be to apply to the inferior court (the Court of King's Bench), which might, perhaps, make such an order, and then the bill of exceptions might be brought up by an allegation of diminution. The case cited hardly sustains the text. Only one of the judges expressed the opinion that the writ of error and the return of the record were a waiver of the bill of exceptions. But if that is the rule in the English courts, it is not imperative even there. Where the presentation to the judge has been delayed from the default of the defendant in error, or for other sufficient reasons, the Court of Errors will allow the bill of exceptions, when signed, to be tacked to the record as of the time when the record was removed. Taylor v. Willans, 2 Barn. & Adol. 845; s.c. 6 Bing. 512. The case is also reported in 4 Moo. & P. 257, where the facts are fully stated. On the trial before Chief Justice Tindal, on the 23d of December, a bill of exceptions was tendered, the substance of which was reduced to writing and given to the officer of the court before the termination of the cause, but it was not then signed and sealed. There was a verdict for the plaintiff. The defendant sued out a writ of error in the King's Bench. Subsequently, on the 11th of February following, the bill of exceptions in an amended form was settled by the counsel for the parties, and a copy was sent to the plaintiff's attorney that he might accede to its terms, or suggest alterations before it was sealed by the Chief Justice. At the same time, the defendant served a rule to transcribe the record for return with the writ of error. The bill not having been returned, the court granted an order for its return. It was argued against the rule (and Dillon v. Parker was cited in support of the argument) that the bill was waived, and that, by the writ of error and the rule to transcribe, the record had been *356 removed into the King's Bench. But the court, all the judges concurring, retained the order upon the attorney, holding that the Chief Justice might seal the bill. It is not, therefore, by any means settled, even in England, that suing out a writ of error is a waiver of unsigned bills of exceptions.

We know of no decision in this country that asserts or gives any countenance to such a rule, or any reason that justifies it, unless it be one in New York, to which we shall refer. True, a writ of error here, as in England, is supposed to remove the record of the court to which it is directed into the superior tribunal. But this is a mere fiction. In neither country is the record itself actually sent up. A transcript only is sent. In England, at common law, a writ of error operated as a supersedeas and stayed all action of the inferior court, and thence it was regarded as removing the record and ousting the jurisdiction of that court. The law there has been changed. And here, the writ is of itself no supersedeas. If there be no bail for a supersedeas, a writ does not stay the action of the trial court. An execution may be issued and executed though a writ of error is pending. Much more, it would seem, must the court to which the writ is sent have power, during the term in which the case is tried, to put its records and proceedings in form to return them in obedience to the writ. If that cannot be done, great hardship and injustice would in many cases be the result. As we have said, bills of exceptions cannot always be formally prepared until a considerable time after verdict and judgment. They may require, in some cases, a full statement of almost all that occurred at the trial. Papers necessary to be incorporated may be mislaid or withheld by the opposite party; the charge of the judge, to which exception has been taken, may not have been filed, or sickness may have interfered. Meanwhile, judgment on the verdict may have been entered, and unless the party can protect himself by a writ of error, an execution may follow. For these reasons, the universal practice is to give reasonable time to make up the bills of exceptions and obtain the signature. This is not altering the record, it is completing it. It is not exercising jurisdiction over the case. It is merely putting into form the record statement of what was done before the writ of error was sent down. In Brown v. *357 Bissell (1 Dougl. (Mich.) 273), where a bill of exceptions returned with a writ of error appeared to have been signed after the writ was sued out, it was held to be, at most, whether at common law or under the statute, a mere irregularity, which was waived by a joinder in error. Witbeck v. Waine, 8 How. (N.Y.) Pr. 433.

The remaining objection to the bills of exceptions is that they were not signed nor filed nunc pro tunc, but that they appear on their face to have been signed and filed ten days after the trial. We think, however, the absence of any order that the bills should have the same effect as if they had been signed and filed during the trial is not a fatal objection. The order of March 1, extending the time for signing and filing, is equivalent to such an order. And the fact that the date of the signature was the 28th of February is of no practical importance. At most it is only an irregularity. It is not a void act. Perhaps the bills would appear more regular had they been dated February 17, but they are recitals of what occurred at the trial, and they show that the exceptions were then taken — taken in time. If it be kept in mind that the judge's signature is required only for "testimony" that the exception was taken at the trial, and before verdict, it cannot be material that the testimony was given after the close of the trial, if given during the term. We do not overlook what was said in Walton v. United States, 9 Wheat. 651. We gather the facts of that case only from the opinion of the court, delivered by Mr. Justice Duvall, by which it appears that the bill of exceptions did not show that any exception was taken at the trial. That, of course, was a fatal defect. But, after having noticed that fact, he made some general observations. After stating that it will be sufficient if the exception be taken at the trial, and noted by the court with the requisite certainty, and that it may afterwards, during the term, according to the rules of court, be reduced to form and signed by the judge, he added, "But in all those cases the bill of exceptions is signed nunc pro tunc, and it purports on its face to be the same as if actually reduced to form and signed pending the trial. And," he said, "it would be a fatal defect if it were to appear otherwise; for the original authority under which bills of exceptions are *358 allowed, has always been considered to be restricted to matters of exception taken pending the trial and ascertained before the verdict."

These remarks were not necessary to the decision of the case, and they are unsustained by any authority, so far as we know, that existed when they were made. In Ex parte Bradstreet (4 Pet. 102), Mr. Chief Justice Marshall said, a practice to sign a bill of exceptions after the term must be understood to be a matter of consent between the parties, unless the judge has made an express order in the term allowing such a period to prepare it. No intimation was given that the signature must be nunc pro tunc.

Walton v. United States was referred to in Law v. Merrills (6 Wend. (N.Y.) 268), by one of the judges, and the language of Mr. Justice Duvall quoted, but it was unnecessary to a decision of that case. The bill there had been signed a year after the trial, by a judge who had not tried the cause. We find no case which can be regarded as an authoritative decision that a bill of exceptions, signed during the term at which the trial took place, though after the close of the trial, must be antedated to make it effective, or ordered to be filed nunc pro tunc, as of a time during the trial. Nor can we discover any reason for such a requirement. During the term the records of the term are before the court for amendment in matters of form, and whether a bill was signed as of a date after judgment if during the term, or antedated to a time during the trial, is a question of form only, if it appears that the exceptions were in fact taken before verdict and during the progress of the trial. Confessedly it may be signed after judgment, as of a date before, and be effective, though the date of the signature in such a case is false. Why should giving to the signature its true date destroy it? The reason why it is required that a bill shall be presented for signature during the term (except in extraordinary cases, when delay is allowed by the judge), is that the facts appearing and rulings made at the trial may be fresh in his memory. Are they any more fresh in his memory when he antedates the bill, or orders it to be filed as of the date of the trial, than when he gives to the signature and filing their true date? We cannot doubt that in a multitude of cases *359 bills of exceptions have been signed after judgment, and filed without any order that the signature and filing be entered nunc pro tunc, but, when the true time of the signature appeared, have been treated as sufficient, whenever they have shown that the exceptions were taken during the trial. And, we think, it would be a surprise to the profession, and work great wrong to suitors, were we to hold such bills invalid.

In Neece v. Haley, (23 Ill. 416), exceptions were duly taken at the trial. The record showed that the bill of exceptions was signed three days afterwards, but during the term. It was held that the bill was good, and that the record need not explain the delay.

So it was ruled in Illinois Railroad Co. v. Palmer (24 id. 43), that, if the bill of exceptions clearly shows that exceptions were taken at the proper time, it is immaterial that it was not signed till some days after the trial, and that it spoke in the present tense.

In Dean v. Gridley (10 Wend. (N.Y.) 254), Savage, C.J., declared that it was not required the bill should be so drawn as to appear to have been signed upon the trial, whether it was so or not. He was speaking of the Supreme Court of Errors. See Hallowell v. Hallowell, 1 Mon. (Ky.) 130; Hughes v. Robertson, id. 215.

We pass, then, to a consideration of the assignments of error. The first raises the question whether the title which was set up in Jonathan Peyton was a legal one or merely an equity. As set out in the several bills of exceptions, it appears to have been as follows: On the 28th of September, 1830, Gregorio Basquez applied to the proper authorities of the Mexican government for a grant in sale of eleven leagues of vacant land in the department wherein Nacogdoches was situated, with the privilege of selecting them together, or separate, or in distinct places.

On the 11th of March next following, a concession was made in accordance with the prayer of the petition, and an order given to the commissioner for the partition of land, or to the alcalde of the jurisdiction, to put the petitioner into possession of the subject of the grant.

On the 20th of September, 1831, Basquez gave a power of *360 attorney to Don Jayme Hartz, empowering him to solicit the possession and titles to the said eleven leagues, in the place or places which best suited, him (Hartz), together or separate, and empowering him also to appoint substitutes.

Two days afterwards Basquez sold and conveyed the grant for the sum of $150 to Don Jayme Hartz in fee.

On the 2d of March, 1832, Hartz, in consideration of $500 to him paid, sold the concession or grant to Jonathan Peyton, the ancestor of the plaintiffs, in fee, and substituted him as attorney. The act of sale recited the conveyance of Basquez to the vendor.

On the 7th of October, 1833, the constitutional alcalde, by a legalized act, conferred upon and put Peyton, the aforesaid attorney of Basquez, "in real, virtual, personal, and actual possession of the eleven leagues," the same which had been granted to Basquez, describing them by the situation, lines, limits, and corners as delineated in the notes of survey made by Francis W. Johnson, the principal surveyor, on pages two and following of the proceeding, with the figure thereof shown in the map thereunto annexed. The act of the alcalde also ordered that an authenticated copy of it should be delivered to the interested party that he might possess, use, and enjoy the lands sold to him, his children, heirs, and successors, or whoever of him or them might have cause, interest, or right to represent.

We are unable to see why these proceedings did not vest the legal title to the lands granted in Peyton. The possession was delivered to him, and he was instituted therein. The interest of Basquez, whatever it was, both legal and equitable, had been sold by him to Hartz, and Hartz had sold it to Peyton. The institution into possession must, therefore, have inured to the benefit of Peyton. It is a mistake to allege, as the defendants now do, that the final extension of title was to Basquez. It may be that Peyton would have held the land for the use of Basquez, had he been only the attorney of Basquez. But he was more. He was a grantee of all the Basquez right. In this particular the case is unlike Hanrick v. Barton, 16 Wall. 166. In that case, as here, there had been an extension of the possession to the attorney in fact of the original grantee of *361 the government, and it was held that the extension inured to his benefit, and that its legal effect was to perfect title in him. But there had been no grant of the original title to the attorney. An assertion of title in him was, therefore, a fraud upon his principal. But this court said: "We do not mean to say that the original grantee, if not prohibited by law, might not have assigned his inchoate title to a third person, nor that the title might not, by a grant in proper form, have been perfected in such assignee."

It has repeatedly been decided in Texas that purchasers under the twenty-fourth article of Mexican laws of 1825 can alienate their grants as soon as the concession has been made to them, before the land was selected, or the title of possession was issued. Ryan v. Jackson, 11 Tex. 391; Clay v. Holbert, 14 id. 189. In Martin v. Parker (26 id. 254), it was held that a formal act of sale by the original grantee, with a power to the purchaser to obtain the title of possession, must be held to constitute the purchaser the absolute owner of the property when he is put into possession of the land, and the evidence of title by the proper officer of the government. Such is this case. The first assignment of error, therefore, cannot be sustained.

Nor can the second. The original grant, it is true, did not locate the subject of the grant. It contemplated a selection and location thereafter, and, when these were made, as the jury found, and the title of extension was given, the title was complete. There was enough in the extension, coupled with the notes of the surveyor (made a part of it), to enable the location to be identified. A more important question is raised by the third and fourth assignments.

It was a very material inquiry at the trial, where the Basquez four leagues had been located. The title-papers described the location as beginning at a stake marked P, upon the left margin of the river Brazos, running thence north 71 degrees east, to a corner; thence by other courses back to the river, and thence up the river to the place of beginning. Such was the report of the survey. The starting-point was a stake, perishable, of course, which, as might have been expected, would not be found after a lapse of forty years. But the survey was *362 not a mere chamber one. There was evidence that it had actually been made upon the ground, and the court submitted to the jury to find whether it had or not. No exception was taken to this submission, and the jury found that an actual survey had been thus made. Its location was the matter chiefly in controversy. The claim of the plaintiffs was that its upper or north line, described as beginning at a stake marked P on the left bank of the Brazos River, running thence by a course north 71 degrees east, was the upper line of the Austin & Williams reserve, and identical with it to the extent of the Basquez survey. To prove this they introduced the testimony of Horatio Chriesman, against the objection of the defendants. Chriesman had been a surveyor under F.W. Johnson, principal surveyor of the Austin & Williams lands in the reserve, and William Moore, deceased, had been another deputy. The two deputies, in 1833 and 1834, had been engaged in surveying in the reserve other lots on the left side of the Brazos River. Neither of them was on the Basquez tract, or on any line of it. Chriesman was laying out tracts fronting one thousand varas on the river. By direction of Johnson, these surveys were to include all the river-front between the upper line of the Ruiz (a grant located on the lower line of the reserve) and the lower line of the Basquez four-league grant. Moore was surveying in the rear. During the time that Moore and the witness were thus engaged surveying in the reserve, and perhaps before that time, as he testified, he was allowed to state that Moore informed him that he had made the survey of the Basquez four-league tract; that the upper line of said grant began on the east bank of the Brazos River, at the point where the upper line of the reserve began; and that the upper line of the Basquez ran north 71 degrees east with the reserve line the full distance of the Basquez line, and that the upper line of the Basquez and the upper line of the reserve were the same to the extent of the Basquez line. It was this testimony, and other of a similar nature, to which the defendants objected, and to the admission of which they excepted.

It is to be noticed that the witness himself, as he expressly stated, had no knowledge of the location or lines of the Basquez survey, except what Moore had told him. The declarations of *363 Moore were made, not when he was pointing out the boundaries of the Basquez survey, but when he was at a distance from the place of beginning of that survey and from its upper line. That Moore had made the survey, or ever been upon its upper line, or on the upper line of the reserve, is proved only by his assertion, which the court allowed to be given in evidence. There was no such proof aliunde. Whether he had any knowledge of the facts whereof he spoke to Chriesman, is known only from his own statement.

Again, Moore's declarations had no reference to reputation in the neighborhood. They are not to be confounded with proof of reputation, — proof of what the community thought, believed, or said. As repeated by the witness, they were mere hearsay, the unsworn declarations of a deceased person respecting a particular fact not of a public nature. We do not question that such declarations of reputation respecting ancient public boundaries are admissible, and they have sometimes been admitted in controversies respecting private boundaries. But they are admissible in only a limited class of cases, — a class much more limited than that in which such evidence is offered to prove reputation of public boundaries. Proof of reputation is open to rebuttal by witnesses. Not so with declarations of a particular fact respecting a private boundary. They are, therefore, receivable only when made coincidently with pointing out the boundaries and generally as part of the res gestæ.

In Ellicott et al. v. Pearl (10 Pet. 412), we find a case which bears strongly on the present. In that case, which was a writ of right for a tract of land, in which the location of a survey was a matter in controversy, a witness was offered to prove that one Moore, who was dead, but whose name was put down as one of the chain-carriers in making the original survey, and who was subsequently present when lines were run on the same land, had declared that a certain corner was the corner made by the surveyor when the original survey was made and the line was run for that survey. The evidence was rejected, and, this court ruled, correctly rejected, though the declarations offered were made by one who was proved by other evidence to have assisted in running the line. This case is instructive, *364 and we believe it is in harmony with the rule generally enforced in this country. It certainly is in accord with the ruling of the English courts.

It is true that in several States of the Union decisions have been made recognizing the admissibility of declarations of deceased persons, even though they were statements of particular facts and in regard to mere private boundaries; but many of them, perhaps most of them, were admissible on other grounds, either as parts of the res gestæ or declarations of parties in possession. We think such is not the preponderant weight of decision. In Massachusetts, where the subject has been much discussed, it is held that, to be admissible, such declarations must have been made by persons in possession of land and in the act of pointing out their boundaries. Bartlett v. Emerson, 7 Gray (Mass.), 174; Daggett v. Shaw, 5 Metc. (Mass.) 223. And again, in Long v. Colton (116 Mass. 414), when it was said that it is an element not to be disregarded, especially where the question is one of private boundaries, that the declaration was made while in the act of pointing out the boundaries, on the declarant's land. The declaration derives its force from the fact that it accompanies and qualifies an act, and is thus a part of the act. A similar ruling was made in Bender v. Pitzer, 27 Pa. St. 333.

We will not undertake to review the vast number of decisions of State courts upon this subject. It would greatly protract this opinion. Some things may be deduced from them, which, though not universally recognized, are the conclusions to which, we think, a great majority of them lead. In questions of private boundary, declarations of particular facts, as distinguished from reputation, made by deceased persons, are not admissible unless they were made by persons who, it is shown, had knowledge of that whereof they spoke, and who were on the land, or in possession of it when the declarations were made.

To be evidence, they must have been made when the declarant was pointing out or marking the boundaries or discharging some duties relating thereto. A declaration which is a mere recital of something past is not an exception to the rule that excludes hearsay evidence. Still, if a different ruling has been *365 made in the State of Texas, and has become a rule of property there, applicable to the determination of controversies respecting disputed boundaries, we should feel constrained to apply the Texas rule to this case. We have, therefore, carefully examined all the decisions of the Supreme Court of that State which relate to the subject. The result has been to convince us that there is no essential difference between the rule as there held and the general rules held by the American courts. Hearsay evidence is admitted in questions of boundary to establish old boundary lines, even when private; but it is under restrictions, and the restrictions appear to be the same as those which are recognized elsewhere.

The first case is George v. Thomas, 16 Tex. 74. What was there ruled was that the declarations of a public surveyor, made while he was making the survey to establish the dividing line, were admissible. They were a part of the res gestœ. This is the leading case to which the later cases refer, and upon which they are generally rested. The opinion cites Blythe v. Sutherland, 3 McCord (S.C.), 258. In that case the declarations of a deceased surveyor, who was proved by a witness to have run the line originally, were admitted in evidence. But they were declarations made while the surveyor was pointing out the line and showing the monuments. Stroud v. Springfield (28 Tex. 649) goes no farther. The evidence offered in that case was rejected. The court, however, referred to Speer v. Coate (3 McCord (S.C.), 227), where the court had said in reference to the declarations of a deceased chain-carrier who had pointed out to the witness a corner tree of the survey, "it cannot be doubted at this day that the declarations of deceased persons who shall appear to have been in a situation to possess the information, and are not interested, shall, on a question of boundary, be received in evidence." Even this was not declared to be an accepted rule in Texas, though the chain-carrier who aided in the survey had actually pointed out a corner.

The next case is Welder v. Carroll, 29 Tex. 317. It decided nothing more than was ruled in the former cases. Indeed, while the court said, "If the locality of a boundary line can be proved by witnesses, who can, from their personal knowledge, or on information derived from general reputation, or from its *366 having been pointed out to them by the surveyor by whom it was run, or others who were present at the time, or cognizant of the fact, it will fix and mark its position." But at the same time the court rejected the deposition of a witness tending to prove the locality of the line from information given him by a surveyor, remarking that "while, as heretofore held by this court, hearsay evidence to establish ancient boundaries is, under proper circumstances, admissible, it should be closely scrutinized and received with proper caution." And it was held that the evidence was much too vague and uncertain in respect to the locality of the line of which the witness spoke, as well as in respect to the source of his information, and the time and circumstances under which he acquired it.

The next case is Evans v. Hurt and Others, 34 id. 111. It decides that declarations of a former owner, since deceased, who, while in possession of and claiming the land, pointed out his corner and line to the deposing witness, are evidence of the boundary in behalf of the parties claiming under him. This is the rule as held in other States. The court also decided that the declarations of a son of a former owner who pointed out the disputed line to the witness were inadmissible; but the case does not show what they were, nor under what circumstances they were made. This case came again before the court, and it is reported in 49 id. 311. The report, however, contains nothing more definite than what appears in 34 Texas.

The only other case which we have found or to which we have been referred is Smith v. Russell, 37 id. 247. In that case it appeared that the lower court had permitted the defendants to prove that one of the original chain-carriers, who was dead at the time of the trial, had pointed out to the witness the place of the corner. The Supreme Court held that the evidence was properly admitted, with the general remark that "the declarations of deceased witnesses may be proved to fix the location of corners and lines," citing Stroud v. Springfield and Welder v. Carroll. From a review of all these cases it is quite obvious that the rule in Texas is not different from that which we have endeavored to show is the general American rule, the guarded rule we have heretofore stated.

Our conclusion, therefore, is that the fourth and fifth assignments *367 of error must be sustained, and that the answer of Chriesman to the fourth, ninth, and nineteenth interrogatories, as well as all the declarations of Moore, were erroneously received.

We discover no error in the admission of the evidence set out in the fourth bill of exceptions. The documents were certainly evidence against one of the defendants.

Nor can the sixth assignment of error be sustained. The survey made under the Sanchez concession was not the completion of his title. It did not identify the subject of the concession until it was accepted by the government, and until the title of possession was given. That was issued Oct. 19, 1833, after the Basquez concession had been consummated.

The seventh assignment relates to the charge given to the jury respecting the Statute of Limitations. To understand this it is necessary to refer to some of the facts that appeared in evidence. It appeared that in 1835 John Marlin, as a colonist, obtained a complete grant from the Mexican government of one league, part of which interfered with the Basquez four-leagues tract. It appeared also that the defendants, Watson and his children, Bartlett and his wife, and W.H. Jones, having shown title in themselves to the several tracts they claimed, by regular transfer from the sovereignty of the soil, gave evidence tending to show that their ancestor, Churchill Jones, in 1855 or 1856, took actual possession of that part of the Marlin league which interfered with the Basquez grant, built a mill and other improvements thereon, and that the possession had been kept up exclusively by said defendants and those under whom they hold, down to the trial. This possession they claimed to be a defence. It appeared, however, that in 1858 the plaintiffs' ancestor entered on the Basquez grant, but not on the interference, and made a lease to James Marlin, permitting him to occupy three hundred and twenty acres. Marlin has ever since resided there, holding as tenant under the plaintiffs or their ancestor.

The charge of the court was as follows:-

"The facts, as I understand the defendants to claim them, are that in 1855, under the Marlin title, and in 1856 or 1857, under the Sanchez title, they took actual possession of their lands lying within the conflict.

*368 "From that date the Statute of Limitations began to run in their favor for the lands embraced within their title as against the Basquez title. If three years elapsed before they were ousted by a superior possession, then their occupancy for three years makes a complete bar to any recovery by the plaintiffs.

"But the plaintiffs claim that in May, 1857, before the defendants had been in possession for the period of three years of any of the lands within the conflict, their possession was interrupted by the entry upon the Basquez grant of James Marlin as the agent for Mrs. Eberly.

"If you find this fact to be as the plaintiffs claim, that James Marlin entered upon the Basquez grant in 1857 as the agent for Mrs. Eberly, claiming title to the whole in her name, we instruct you that for that time the possession of the defendants — they holding under a junior title — was restricted to the lands actually occupied by them, and could not be extended by construction to the bounds called for by their paper title.

"From Jan. 28, 1861, to the 30th of March, 1870, the Statute of Limitations in this State was suspended. No extension, therefore, of the actual possession of defendants between these dates would avail them unless held for three years after the statute had again commenced running, and before the commencement of this suit."

It is this instruction of which the defendants complain. But we think it was correct. It was in accordance with the doctrine asserted in Clarke's Lessee v. Courtney (5 Pet. 319), and generally recognized. It is true that when a person enters upon unoccupied land, under a deed or title, and holds adversely, his possession is construed to be coextensive with his deed or title, and the true owner will be deemed to be dismissed to the extent of the boundaries described in that title. Still, his possession beyond the limits of his actual occupancy is only constructive. If the true owner be at the same time in actual possession of part of the land, claiming title to the whole, he has the constructive possession of all the land not in the actual possession of the intruder, and this, though the owner's actual possession is not within the limits of the defective title. "The reason is plain. Both parties cannot be seised at the same time of the same land under different titles. *369 The law, therefore, adjudges the seisin of all that is not in the actual occupancy of the adverse party to him who has the better title." These distinctions are clearly shown in the cases. One who enters upon the land of another, though under color of title, gives no notice to that other of any claim, except to the extent of his actual occupancy. The true owner may not know the extent of the defective title asserted against him, and if while he is in actual possession of part of the land, claiming title to the whole, mere constructive possession of another, of which he has no notice, can oust him from that part of which he is not in actual possession, a good title is no better than one which is a mere pretence. Such, we think, is not the law. When the owner of the Basquez title entered upon the tract, took actual possession of a part by his tenant, and retained it, claiming the whole, the law gave to that owner the constructive possession of all that was not in the actual adverse possession or occupancy of another.

In Altemus v. Long (4 Pa. St. 254), it was ruled that though actual possession under a junior title of part of a tract of land, which interfered with an older grant, gave possession of the whole to the holder of the junior title, yet a subsequent entry of the true owner upon any part of his land was an ouster of the intruder from what he had in constructive possession merely. We know of no authoritative decision that is in conflict with this.

It is sufficient to say of the eighth assignment of error that it is not sustainable. The answer to the defendants' point was clearly correct.

The remaining exception is to the sufficiency of the verdict. It is said it was "indefinite, uncertain, and did not find the main issue; viz., how much of the defendants' land, if any, is covered by the Basquez grant"? This is not necessary for us now to discuss. It may be the verdict was not sufficiently certain, but as the case goes back for another trial, the matter is of no importance now.

Judgment reversed and cause remitted for a new trial.

MR. JUSTICE FIELD and MR. JUSTICE BRADLEY dissented.