majority">Watts, J. Com. App.

Where the first patent was canceled and a resurvey made and another patent issued, the parties might possibly have been entitled to another partition of the land. But this change did not necessarily work a rescission or revocation of the partition which Howth and Dangerfield had previously voluntarily *192made by their joint deed, then of record. Even though one may have lost more of the land allotted to him than did the other, still that deficit might have been made good by a voluntary or forced contribution without in any manner interfering with the division line established by the parties in their deed.

At the time this suit was brought that deed had been on record for about thirty-six years, and more than twenty-five years had elapsed after the issuance of the second patent before appellees are shown to have asserted any right inconsistent with the deed of partition. Both Dangerfield and Howth were dead when the suit was brought, and there is not a single circumstance shown which in the slightest degree indicates, at any time, a disposition upon the part of either to repudiate the partition which they had mutually agreed upon and evidenced by their deed.

But, to the contrary, some three years subsequent to the issuance of the last patent, it appears that Howth, while upon the land in company with the surveyor, told him about the partition that had been made, and explained the matter by stating that Dangerfield got the north and he the south end of the survey. In that conversation it seems that he expressed no dissatisfaction with the partition, or any determination on his part to repudiate it on account of the correction of the survey.

After so long delay by appellees in asserting any right inconsistent with the deed of their ancestor, certainly it will not be presumed that the original parties did not enter into some arrangement about the deficit entirely satisfactory to themselves, and by which their partition deed was left in full force. By the deed they had fixed the division line and declared to the world that it was the common boundary w7hich marked the limit of their respective individual estates. And it is a reasonable supposition that, if they had not intended it to so remain, the contrary would have been declared by them in some certain and definite manner.

According to the case as presented by the record, it seems to admit of no doubt but that the partition line as agreed upon and fixed in the deed must be considered and held the common boundary between the parties.

But in addition to that view, it appears that the parties have acted upon and acquiesced in that partition. Appellants, it seems, purchased one hundred and eight and one-half acres of land from the appellees, which was situated on the south end of the survey, and that this purchase was made upon the faith of the partition, as shown by the joint deed of Howth and Dangerfield. It also appears *193that appellant G. W. Brackenridge made the several purchases from Mrs. Wilson of the land on the north end of the survey, relying upon the partition deed.

Evidently the appellees are estopped from asserting any right inconsistent with the deed of their ancestor. Kimbro v. Hamilton, 28 Tex., 560; Parker v. Campbell, 21 Tex., 763.

In our opinion the finding of the court is against the evidence, and that the judgment ought to be reversed; but as the evidence does not disclose with certainty whether there is any land upon the survey south of the partition line, and not embraced in the conveyance from appellees to the appellants, the cause ought to be remanded with directions to the court below that this fact be ascertained, and if there is any such land, then to render judgment therefor in favor of the appellees, unless a distinct and unequivocal disclaimer is filed by appellants.

Owing to the conclusions reached, it becomes unnecessary to con-. sider the assignments of error with respect to the ruling of the court on the demurrer presented by Mrs. Wilson. For it is not claimed that she conveyed to G. W. Brackenridge any land lying south of the established partition line.

Reversed and remanded.

[Opinion approved May 22, 1885.]

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