The propositions under this assignment

are:

she had acquired title to an undivided 160 | being the admitted owner of the land, unless acres including her improvements. The ap- plaintiff has acquired title under the ten-years statute of limitations, plaintiff having wholly pellant, however, insisted that the improve- failed to show any title to the land or any part ments of the appellee were not on the Abbott thereof." survey, but were on the Andrew Dikes survey, of which the appellee was admittedly the owner; and that, regardless of whether her improvements were on the Abbott or on the Dikes, or on that part of the Abbott covered by the junior Dikes survey, the character of the possession of the appellee was wholly insufficient to entitle her to an undivided 160 acres out of the Abbott.

The appellant contends that the judgment of the trial court should be reversed for the following reasons:

(1) The undisputed facts in this case show that the improvements of the appellee were not on any part of the M. L. Abbott survey, of which the appellant is admittedly the record owner, so that this case for this reason should be reversed and rendered.

(2) The most that can be said for appellee is that her improvements were on that part of the Dikes survey owned by her conflicting with a part of the M. L. Abbott survey, so that appeilee can recover no more of the Abbott survey than that small part of it covered by the Dikes. (3) Under the undisputed facts, the appellee did not show any title under the 10-years statute of limitations, and this case should be reversed and rendered, because: (a) Appellee's possession was not adverse, within the meaning of the statute, in that she expressly admitted that she had no claim of right to the land, but went on it purely for the purpose of acquiring 160 acres under the 10-years statute of limitations; (b) appellee sued for and the judgment awarded her an undivided 160 acres out of the entire Abbott survey, while she expressly admitted that she claimed 160 acres out of a definite part of the Abbott survey, her claim not being to an undivided interest in the whole survey, as alleged in her petition; (c) as the United State Circuit Court at Houston, through its receiver, from March, 1904, until April, 1909, was in possession and control of the Abbott survey, and was vested with the title thereto, the appellant having no title or authority with reference to said property, and as all the parties by said court were enjoined from interfering with its possession, the appellee's occupancy, which began in August after the court took possession of said property in March, was not sufficient to constitute adverse possession, the property being in custodia legis.

(4) On the trial of the case, over the objections of the appellant, witnesses for the appellee were permitted to testify and to give in evidence their opinions and conclusions with reference to the location of the west line of the M. L. Abbott survey, the east line of the A. Dikes survey, and other material lines as well as corners, the locations of which were contested, so that this case should, at least, be reversed and remanded because of the admission of such improper evidence before the jury.

(5) The counsel for the appellee made harmful and improper argument to the jury, telling them that, if they located the lines as claimed by appellant, "there may come a time when it will come and move your lines around your land," which argument alone would require this case to be reversed and remanded.

The first assignment is as follows:

"The court erred in failing and refusing to peremptorily instruct the jury to return a verdict in favor of the defendant, the defendant

(a) "It was error for the court to refuse to peremptorily instruct the jury as requested, for under the undisputed evidence, as a matter of law, it was shown that none of appellee's improvements were on the Abbott survey, the land in controversy; so that appellee showed no possession of the land, it having been agreed that the appellant owned the land unless appellee had acquired title under the ten-years statute of limitations."

(b) "It was error for the court to refuse to peremptorily instruct the jury as requested, for under the undisputed evidence, as a matter of law, it was shown that the appellee's improvements were on the Andrew Dikes survey, owned by her, and not on the Abbott survey; so that appellee showed no possession of the land in controversy, and appellant was therefore entitled to judgment, as it was agreed that appellant owned the record title to the Abbott surVey, and that appellee to show title relied solely on the ten-years statute of limitations."

(c) "As the undisputed evidence showed that the west line of the Abbott survey had a fixed location, according to its field notes, east of appellee's improvements, and as the undisputed evidence showed that the Dikes east line was definitely located by its own field notes east of appellee's improvements, such showed that appellee had had no possession of the Abbott survey as required under the ten-years statute of limitations to acquire title, so that the court erred in refusing to peremptorily instruct the jury as requested."

(d) "As the field notes of the Abbott and Dikes surveys call for corners and lines of surrounding surveys, and contain no inconsistent calls, it is not admissible to show by parol evidence that a different survey was in fact made for the purpose of controlling the calls in the grants." (e) "As the calls in the field notes of the Abbott and Dikes surveys, when applied to the land, correspond with each other, parol evidence was not admissible to vary them by showing that in point of fact they were not the calls of the survey as actually made."

(f) "As there was no conflict in the calls in the field notes of the Abbott and Dikes surveys, there was no room for construction, and the calls must speak for themselves, for to permit the introduction of parol evidence to vary such calls would be to violate the familiar rule that extraneous evidence is not permissible to vary a written instrument."

(g) "Where field notes call for certain known and established monuments and boundaries, they may not be controlled by parol proof of a survey entirely inconsistent with and repugnant to the calls of the grant."

On the contrary, it is contended that the location of a survey on the ground, or footsteps of the surveyor, control all classes of calls, and that the verdict of the jury finding that Mrs. Brown resides upon the M. L. Abbott survey, there being evidence to support their verdict, is conclusive on appeal; and also that the proof amply supports the verdict that Mrs. M. J. Brown's improvements were on the M. L. Abbott survey, they being east of the Abbott and Dikes common division line, and such verdict ought to remain undisturbed.

"Resurveyed and corrected for Andrew Dikes, William Pamplin, from which a hickry mkd. X April 20, 1888."

bra. N., 25 deg. W., 11 vrs.; thence W. on S. line of same, at 590 vrs., E. line of a pre. sur. for Jas. Abbott, a cor. stake on large branch C. N. E., at sweet gum, brs. N. 7 vrs., a beech 10 ins. brs. S., 58 W., 9 vrs.; thence S., at 55 vrs., large branch, at 215 vrs., Abbott's S. W. cor., a stake, a pine brs. N., 37 deg. E., 10% vrs., do. S.. 23 deg. E., 101⁄2 vrs.; thence W., at 60 vrs., branch at 710 vrs., cor. stake on Jas. Abbott's S. line, at pine, brs. S., 20 E., 7 vrs., do. B. 67 E. 6 vrs.; thence S., at 1,356 vrs., N. E. cor. of a pre. sur. for Andrew Dikes, at 1,996 vrs., Dikes' S. E. cor., on N. line of R. Gregory's sur., a stake, a pine 20 ins. brs. 13 vrs., do. 18 ins. N., 41 deg. W., 12 vrs.; thence E., at 400 vrs., Gregory's N. E. cor., stake, pine brs. S., 20 deg. E., 2 vrs., a B. J. N., 10 deg. W. 6 vrs.; thence S., at 555 vrs., the place of beginning, bearings mks. X."

east of such line on the M. L. Abbott survey. McBride surveyed for Dikes, on which he got his patent, it was in 70's, and since called Dikes' survey (before that called McKartney survey). McBride then run north and located the northeast corner of Dikes,' Mrs. Brown's place, east of this line. McBride ran that line for Andrew Dikes; he run it out to establish his corners.

"I carried the chain when Mr. Hyde surveyed it, and from the northeast corner of Gregory to southeast corner of Dikes, 400 yards, and a stump is there at the place McBride made the southeast corner of Dikes. I didn't know the stumps as trees were cut. But I knew it was right there. I had seen it put there. I was present when J. P. Mettauer, Mr. Hinman, and a surveyor from Kountze run the lines of Abbott, Gregory, and Dikes. They run the line of Abbott and Dikes west of Mrs. Brown's place. I was there assisting in the work. My wife heired one-half of Gregory. Her father was R. Gregory."

Mrs. Brown, the appellee, testified for her

self.

"I know where the old original line is (of Dikes and Abbott); it is west of my house."

She further testified that she knew all the time she was on the Abbott, erected her present home thereon, garden, outhouses, and other improvements, and her husband's farm he left her was already thereon.

In addition to the field notes of the Andrew Dikes survey, as per the calls therein, the appellant produced a witness, T. M. Hyde, who testified that he knew the plat marked Exhibit 23 in this opinion; that he begins at point 27, thence south to point 30, thence east to point 31, the southeast corner of R. Gregory, at an identified corner, thence north to point 20, there found stump, the northeast corner of Gregory; taking this identity of the Gregory, the oldest survey, then running west 400 varas, as called for by all the field notes, we locate the southeast [1] Therefore, in our opinion, the testimo corner of the Dikes at the point contended ny is sufficient and ample to support the for by appellee. He further testified that verdict of the jury in so far as that is callusing the plat marked Exhibit 24 in this ed in question by the assignment, and shows opinion, which shows the old corners and es- why one of the parties, as above set out, tablished R. Gregory survey, and taking the who was on the ground at the time the orignortheast corner as thus established, about inal survey was made, and when the southwhich there seems to be no dispute in this east corner of the Dikes survey was placed record, and then running west 400 varas, as there, that the same was at the point concalled for by all of the surveys and by the tended for by the appellees. It is further field notes of A. Dikes, the point is located shown that all the old lines, up to three or as the southwest corner of Dikes, as con- four years ago, together with the testimony tended for by appellees. Mr. Hyde further of the oldest inhabitants who knew the testified that the R. Gregory survey is lo- same, to know where the said corner was cated as shown in Exhibit 24, and by black situated, that the said corner was originallines in Exhibit 23, and that to run from its ly located at the point contended for by the northeast corner west 400 varas, as called appellee; and it is further shown that the for in the field notes of the Dikes' and Ab- new lines, as shown in Exhibit 24, were by bott's, to a corner, then running north as all the witnesses and testimony, perhaps, called for, the east line of Dikes and west shown to have been made within the past line of Abbott, an identical or common line, three or four years, and were not old lines. is west of Mrs. Brown's place, and throws The parol testimony offered to show that her improvements all on the Abbott. He the oldest inhabitants knew of the original says, further, that the red and yellow lines line called for in the Dikes field notes, be indicated by him in Exhibit 24 could not ginning with Mr. Worthy, who was present have been run in 1856, or even as long ago as and testified exactly where the southeast 1888, but the red lines are new lines. That corner of the Dikes was made upon the the yellow lines are imaginary. ground, seems to coincide with the testimony and the calls of the grant of the Dikes survey; that the original surveyor, by his footsteps and his work, placed upon the ground the line as contended for by the appellee; and, as has been above stated, the said calls are not inconsistent with, but followed, the calls in the grant.

Without setting out in detail, it is sufficient to say that the Dickerson survey is a junior survey; that appellee introduced a witness, W. H. Worthy, who testified as follows:

"I owned part of the Gregory and Dickerson surveys. I was present when John McBride, surveyor, was making the original field notes of [2] We are of opinion that the testimony the Andrew Dikes, and establishing corners of along this line was admissible, not for the Dikes' on the R. Gregory, that was the south purpose of contradicting, but showing that east corner of the Dikes. In running north from that southeast corner made by John Mc- the calls in the grant were consistent with