¶1F. E. Udell brought this suit on the twenty-second day of September, in the year 1882, against Samuel Peak et al., to recover certain portions of the Squire Mays headright, situated in Lamar county. Peak claimed two hundrod acres of the land, under a deed from Angus McNeil, by E. M. Heath & Bro., purporting to be his agent; duly registered on the first day of December, 1876. This deed conveys two hundred acres of land in the Ramon Buford survey, by metes and bounds. There is a conflict between the Buford and the Squire Mays; and this conflict includes the two hundred acres embodied in the deed to Samuel Peak. Peak was in possession of the land before the date of his deed, and continued in possession, paying all taxes, until the institution of this suit. He died during the pending of the suit, and his heirs were made parties defendant. The trial resulted in a verdict and judgment for defendants, under their plea of limitation of five years; the title of plaintiff to the land being considered by the court below as perfect. The appellant seeks to -reverse this judgment on several grounds; one of which is the admission in evidence of the deed from Angus McNeil to Samuel Peak. The deed conveys the two hundred acres of land in controversy, and that is all that would ordinarily be required to bar the right of the owner to recover as against one in possession who had complied with the terms of the statute of limitation of five years. The deed was offered and admitted under the plea of limitation of five years. It was admissible under this plea,-although only one of the Heath brothers signed the deed, he signing the firm name under power of attorney from Angus McNeil to E. M. Heath & Bro.; nor was it necessary to show any connection between Angus McNeil and Ramon Buford; nor do we think it necessary that the deed should have been notice of an adverse holding of the land or •of a repudiation of Samuel Peak’s tenancy if any existed. If the recitals of the deed when applied to the external objects therein described) identifying the land in controversy, although the deed purports to convey land in the Ramon Buford survey, it was admissible for the purpose for which it was offered. The Buford and the Mays surveys conflict, and at the date of the deed from McNeil to Peak the patent to the Mays had not issued; and it may not have been known at that time in which -one of the surveys the land was situated; but even if it was, there may be calls in the deed sufficiently certain to identify *550the land, which is all that is required. (Kilpatrick v. Cisneros, 23 Texas, 137; Id., 36.)
¶2There was evidence tending to show that Samuel Peak was-in possession of the land in question, under an agreement with appellant to hold it for him and keep off intruders; and there was also evidence tending to show that the tenancy did not-extend to this particular two hundred acres of land. Upon this state of facts the court, among other things, instructed: the jury as follows:
“The law requires that everyone interested shall take notice of whatever is contained in a deed properly recorded, and if you believe from the evidence herein that the said Samuel Peak had a deed to himself to said two hundred acres of land, put upon record in Lamar county, then plaintiff is charged with notice of such deed, whether in fact he actually knew it , or not, and the knowledge thus imputed to him may be taken into consideration, with all the facts bearing upon the question, in determining whether or not plaintiff knew, or by the use of reasonable diligence might have known, that Samuel Peak was setting up a claim, to said land adversely to plaintiff.”
¶3After the jury had deliberated for some time, they returned into open court and requested further instruction as to the effect of the recording of the deed from Angus McNeil to Samuel Peak, and whether the record of the deed was notice to-plaintiff of the repudiation of Peak’s tenancy; when plaintiff, by his counsel, moved the court to charge the jury that it was not notice to him of an adverse holding, which the court declined to do, on the ground that it would be a charge on the weight of the evidence.
¶4The charge of the court as given is, we think, a correct enunciation of the law when there is an adverse holding under a deed duly recorded, when there is no claim that the occupant is. holding as tenant of the plaintiff; but when the evidence tends to show such a tenancy, the charge becomes erroneous unless limited and restricted to a state of facts where such tenancy does not exist. It is probable that the jury was misled by the-charge given; and, though not assigned as error, and though the charge requested was not such as should have been given without qualification, we are of opinion that, under the circumstances, the court was called upon to charge the jury to the effect that if Samuel Peak was the tenant of the plaintiff, as to-*551the two hundred acres of land, that the recording of the deed to himself from McNeil would not be evidence of an adverse holding or the repudiation of the tenancy on the part of Peak. It would be extremely hazardous for the owner of land to let anyone into the possession of it if such person could, by the mere recording of a deed of the land to himself, repudiate his tenancy and set the statute of limitations in motion in his favor. Such is not believed to be the law. It is well settled that before a tenant can dispute the title of his landlord and invoke the statute of limitations in his own favor, as against the title of his landlord, he must repudiate his tenancy and notify his landlord of the fact, and then the statute will only run from the time of such notice. (Carter v. Town of LaGrange, 60 Texas, 638; Wood on Lim., secs. 540, 541, 542; 4 Howard, 296; 7 Rich., 189.)
¶5It has not been determined, so far as we are advised, what particular acts or declarations of the tenant will be considered as affording sufficient evidence of the repudiation of an existing tenancy; and from the nature of the relation of landlord and tenant, the situation of the parties toward each other, the extent and character of the trust reposed, and other circumstances that might be imagined, it would seem that the question of notice should depend largely on the special facts of each case, the law not having designated any particular act or acts of the tenant as sufficient to put the landlord on notice of a repudiation of the relationship between them.
¶6But when circumstantial evidence is relied on to prove a repudiation of a trust or tenancy, the circumstances should be inconsistent with the terms of the trust or tenancy, and should be of a cogent and convincing character, and such that the landlord, in the exercise of ordinary prudence and diligence, would have discovered. Good faith between contracting parties demand this much. The failure of the landlord to discover the record of a deed to his tenant for the land that he occupied as such can not be an act of negligence. The landlord is entitled to rest upon the presumption that his tenant will carry out his contract in good faith, and that he will do no act inconsistent with his duty without giving express notice that he 1ms ceased to be tenant.
¶7The landlord can be under no obligations to search the record for a deed to his tenant, the mere acceptance of which, .-.'.umt giving notice, would be an act of perfidy; from which *552it follows that a failure to discover the record of such a deed would not be a want of diligence on the part of the landlord, and notice of the record of it will not be imputed to him if he did not in fact know of it.
¶8Appellant contends that the statute of limitations could not commence to run against his title until the patent issued in September, 1882, on the ground that the title remained in the State until that time. The land was surveyed by virtue of the Squire Hays headright certificate in 1841, and the patent finally issued for the land embraced in this survey. The original survey seregated the land from the public domain, and the State was ever afterwards powerless to resume control of it, and it having been appropriated by virtue of a valid certificate the equitable title was in the owner of this certificate, and the statute of limitation would run against such title. (Sulphen v. Norris, 44 Texas, 245; Sherwood v. Fleming, 25 Texas Supp., 408; Wright v. Hawkins, 28 Texas, 471.)
¶9Appellees have filed a cross assignment of errors in reference to the admission of certain deeds in appellant’s chain of title in evidence on the trial of the cause, and we are asked in the event that the deeds were improperly admitted to affirm the judgment. Although errors may have been committed against the appellant, we are of opinion that such a practice would be improper, for the reason that, had the objections been sustained in the court below, it may be that appellant could have obviated the defect in some way, or have taken a non suit and cured it in time for another trial, but we fail to see from the record that the deeds objected to are void for uncertainty. From aught that appears the land in controversy may be identified by the aid of external testimony in conjunction with the deeds. For the errors indicated we are of opinion that the judgment should be reversed and the cause remanded.
¶10Beversed and remanded.