
    MURCHISON v. TINDEL.
    (No. 983.)
    (Court of Civil Appeals of Texas. Beaumont.
    June 5, 1923.
    Rehearing Denied June 13, 1923.)
    Appeal and error <&wkey;212 — Complaint- of submission of issue not available for first time on appeal.
    Error cannot be predicated on failure to direct verdict, appellant not having- requested a peremptory instruction, nor objected to the submission of the issue of boundary, thereby admitting the issue was proper, and that there was sufficient evidence to raise it.
    Appeal from District Court, Henderson County; W. R. Bishop, Judge.
    Action by John W. Murchison against Bo-ley Tindel. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Miller & Miller, of Athens, for appellant.
    Justice & Justice, of Athens, for appellee.
   O’QUINN, J.

Suit in trespass to try title to 25 acres of land by appellant against ap-pellee. Appellant alleged the land claimed by him to be a part of the J. S. Johnston survey, in Henderson county. Appellee answered by plea of not guilty, and claimed the land held by him was a portion of the Arm-stead Earns survey. The case was tried to a jury upon the single issue of whether the land in controversy was situated on and was a part of the Johnston survey, the court instructing the jury as to the contentions of the parties, and that, if they found by a preponderance of the evidence that the land was a part of the Johnston survey to find for the plaintiff; otherwise to find for the defendant. The jury found for the defendant, upon which judgment was rendered, and from which this appeal is taken.

Appellant’s only assignment is that the court erred in not instructing a verdict for plaintiff, for the reason that the evidence showed without question that the land in controversy was situated on and was a part of the Johnston survey.

The question involved is one of boundary. The evidence shows that the Johnston and Earns surveys adjoin, the Johnston lying north of the Earns, the south line of the Johnston being the north line of the Earns, the controversy being as to where said division line is located. Appellant did not object to the charge of the court, nor does he claim that there was any other issue than the one submitted to the jury. That being, true, he cannot complain that the issue was not proper, or that there was no evidence raising the issue; for, in agreeing to the submission of the question to the jury, he admitted that the issue was proper, and that there was sufficient evidence to raise the issue. Appellant did not request a peremptory instruction in his favor, so there is nothing in the record on which to base his assignment.

We have carefully examined the record, and, no fundamental error appearing, the judgment is affirmed. 
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