The opinion
On Rehearing.
To our statement of the nature of this suit, we should add that, as filed this suit involved many defendants claiming different parts of the strip of land between the “brick corner line” and the north boundary line of the BuHock. The appellees to this appeal severed their claims from the balance of the land in controversy, and the only issues, before us now relate to their severed rights.
On the original submission of this case, we based our findings of 10 years’ limitation on the concessions made by appellants in their brief. They now assert that we have not properly construed their concessions, and failed to given consideration to their supplemental statement, filed subsequent to oral argument, which was as follows:
“A concession made by appellants on page 67 of their brief, to the effect that there was sufficient possession shown under the joint use *573 and occupancy of Jef Chaison and Clara Chai-son to support limitation, and the statement under fourth proposition, that there was not sufficient possession to support limitation, seem inconsistent and contradictory. But they are not contradictory if all the facts are considered and are examined from the standpoint which appellants had in mind in considering them in the argument.
“A large portion of the land involved in the main suit had been in the joint possession, use and occupancy of Jef Chaison and Clara Chai-son for such a length of time as to give them title by limitation, and all this evidence is adduced in the trial of the case, but the possession testified about did not extend to the land involved in this severed suit.
“All the possession of Jef Chaison and Clara Chaison was shown upon the trial of the case, and the concession on page 07 of the brief is true as to title to such land as was included in their possession and as to such land as was in their possession, they might have acquired title under the statute of limitation, and that is what appellants had in mind in making the concession found on page 67 of the brief. But the deed to Mrs. Clara Chaison called only for land on the Brown survey, and possession of any portion of the land in the main suit, which did not extend to the land in the severed suit, would not bo possession of land in the severed suit, since the land in the severed suit was not included in Mrs. Chaison’s deed.
“It was shown that Jef Chaison and Clara Chaison, as husband and wife, had joint possession for a long time of a portion of the Bullock survey and a portion of the strip of land in controversy in the main suit, and it may be that the facts will show on the trial of the main suit that they acquired title by limitation to such portion of the strip of land in .the main suit as they had in possession. But their deed calling for only land on the Brown survey, their possession of any portion of the Bullock survey will be confined to actual possession which never extended to or included any portion of the land involved in this severed suit now before this court. Hence, the court will readily understand why appellants made the concession on page 67, that the evidence was' sufficient to support a finding that Clara Chaison and Jef Chaison, by.their joint occupancy and use as husband and wife, acquired title by limitation, but even if limitation be conceded to them on account of their joint use and occupancy on the land of which they had actual possession, being community property, they lost it in the suit of Maggie Polk et al. v. Jeff Chaison et al. But such possession and limitation, if any, never extended to the land in controversy in this severed suit.
“This concession was made under the facts adduced, which show possession of land involved in the main suit, but not as to any land involved in this severed suit. They-never had possession of the land involved in this severed suit, and inasmuch as they did not claim under any deed which included the land involved in this severed suit, their actual possession on some other portion of the Bullock survey never extended to, nor included, the land involved in the severed suit.”
We had this statement before us and gave it the most careful consideration. We do not understand that it modifies in the least the concession made in the original brief, nor that it was so intended; but only to correct what seemed to appellants “inconsistent and contradictory.” They now insist “that the court cannot find as it did on any concession,- but must find limitation from the facts proved, if it finds limitation at all.” In their argument on this point, they say:
“The facts of possession are before this honorable court in appellants’ brief (see pages 46 to 56 of appellants’ brief), and it is unnecessary to restate them in this brief.”
By referring to the pages of the brief thus cited, w'e find that appellants made a statement of the possession on the 320 acres prior to the date of the deed to Mrs. Chaison. After that statement, they say:
“We deem it unessential to quote the evidence relating to question of limitation under the joint possession of Jef Chaison and Clara Chaison.”
Then they conclude with a statement of the possession of the property subsequent to the judgment in the case of Polk v. Chai-son. As the issue of 10 years’ limitation is in the case, and as appellants have made no statement from the record on that issue, we have no alternative except to base our conclusions on the concessions made by appellants in their original brief and in the supplemental statement above given. Prom the concessions thus made, there is no claim on the part of appellants that any part of the ¿ulloek included in Mrs. Chaison’s deed, as we construed in the original opinion, was ever severed by her from the balance of that tract claimed by her during the limitation period, nor that Mrs. Polk was in actual possession of any part of the Bullock during that period. Then while she did not have actual possession of the portion of the Bullock involved in this appeal, she did have actual possession of a portion of the Bullock included in her deed, and her actual possession of a part was constructive posssession of all the Bullock included in her field notes.
“Where one enters into the possession of land, claiming title by deed, his possession by law will be deemed coextensive with the boundaries stated in his deed.” 11 Michio’s Digest of Texas Reports, 1122.
Appellants would avoid the effect of Mrs. Chaison’s possession on the Bullock on the ground that it was only an encroachment. That doctrine has no application to the facts of this case, because her possession did not extend beyond the boundaries fixed by her deed, and she claimed nothing not included in her field notes. On the effect of her possession on the Bullock, as distinguished from *574 an encroachment, our Supreme Court said, in Bracken v. Jones, 63 Tex. 184 :
“Whilst the true owner is chargeable with a knowledge of the boundaries of his land, he can hardly be affected with notice that a neighbor, who has encroached a few feet upon his tract, is doing so for the purpose of acquiring title to 640 acres of it. Pie would rather impute it to a mistake on the part of the apparent trespasser as to the division line between them. Whilst this might not excuse the party trespassed upon for not asserting his right to the land actually occupied by the trespasser, it would certainly save him from such consequences as the loss of a section of his land. The party encroaching would be entitled to no more than the land actually occupied by him.
“The case is different when one settles upon the land of another, claiming under a recorded deed, and having his improvements located within the bounds, called for in such deed. Then the true owner has notice of the extent of the claim of his adversary, and that the improvements are upon it as well as upon his own land, and that, if continued for the requisite period of time, they will give title to the extent of the land described in the recorded instrument. He knows the consequences of such possession, and must provide against them. Brownson v. Scanlan, 59 Tex. 222 .”
The other propositions advanced by appellants on this rehearing are disposed of to our satisfaction in the original opinion.
Their motion for rehearing is therefore overruled. Appellees’ motion for rehearing is also overruled. .