¶1Turner, the appellant, claims title to the one hundred and sixty acres of land involved in this suit by pre-emption.
¶2The appellee claims the same land under a patent of subsequent date to Turner’s pre-emption.
¶3On the trial the court permitted the appellee to offer evidence of a title not set up in his pleadings, which we think was error.
¶4And, moreover, we are of opinion that the title of Turner could not be defeated by the title as claimed through Dunn and Isaacs. Dunn had previously pre-empted the land, but had abandoned his claim. Isaacs, setting up some kind of a claim to it, leased it to Turner and then assigned his lease to Ferguson. Turner went into possession, as he swears, in ignorance of the fact that the land was ..vacant. He was under no obligation to hold the land for Ferguson; nor was he indeed for Isaacs, who had no title whatever to it.
¶5The land was vacant and subject to pre-emption, and Turner having proved up his pre-emption, his right to *509the land could not be defeated by a subsequent location. (Jennings v. De Cordova, 20 Texas, 508; Fowler et al. v. Allred et al., 24 Texas, 184; Kohlhass v. Linney, 26 Texas, 332.)
¶6The judgment of the District Court must be reversed and the cause remanded.
¶7Reversed and remanded.