
    Peter Bisso et ux. v. Bertha Casper.
    Delivered May 23, 1897.
    Limitation—Ten Years’ Statute—Claim Under Deed.
    Where, in trespass to try title, the defendants, holding under a deed which they believe to embrace the land in controversy, plead the statute of limitation of ten years, the question is not whether their claim to the land was based upon their belief that the deed covered it, but whether they claimed the land as their own, adverse to plaintiff and all other parties.
    Appeal from Navarro. Tried below before Hon. Rufus Hardy.
    
      Simkins & Mays, for appellants.
    [No brief for appellee reached the Reporter.]
   FINLEY, Associate Justice.

This is a boundary suit brought by the appellee Bertha Casper against appellants in the District Court of Navarro County, Texas, the plaintiff therein claiming from defendants a strip of land two feet wide by one hundred and thirty feet long, adjoining on the south side of plaintiff’s lot. The petition of plaintiff was in the usual form of trespass to try title.

The defendants pleaded general denial, not guilty, and the statute of limitations of three, five and ten years. The case was tried before the court without the intervention of a jury, and resulted in a judgment for the plaintiff for a strip of land 1 3/10 feet wide by 130 feet long. From this judgment the defendants have appealed.

The judge trying the case filed conclusions of fact and law, which were duly excepted to by appellants. The evidence upon the trial established without dispute that the land recovered was enclosed within the yard fence of appellants, and that it had been continuously so enclosed for more than ten years. The evidence further shows conclusively, that the defendants bought the property in that condition more than ten years before the institution of this suit, and that they have always claimed the property so enclosed as their property, believing that it was covered by their deed. The land so enclosed does not exceed the quantity called for in their deed, and they were of the opinion that they did not have the full quantity called for in the deed within their enclosure. While they believed that they were claiming only to the extent of the calls in their deed, they did claim all the land embraced within their enclosure; and the facts established without dispute upon the trial clearly show an adverse holding by appellants for more than ten years next preceding the institution of this suit.

The court below gave judgment for appellee, upon the idea that appellant’s deed did not embrace the land in dispute, and that they only claimed to the extent of their deed. This view, we think, was clearly erroneous. The question was, not whether their claim to the land actually enclosed was based upon their belief that the deed covered the land, but the question was, whether they claimed the land so enclosed as their own, adverse to appellee and all other persons. The case of Hand v. Swann, 1 Texas Civ. App., 240, involves this question, and Justice Williams in the opinion in that case expresses the views of this court.

The judgment of the court below is reversed, and judgment here rendered for appellants.

Reversed and rendered.  