¶1This is an action of trespass to try title brought by J. 0. Lovell against Thomas Roche to recover the south half of the J. M. B. Smith 640-acre survey, described by metes and bounds in plaintiff’s petition.
¶2The defendant pleaded “not guilty,” and improvements in good faith.
¶3Plaintiff’s proof of title was as follows: The land was patented to James P. Dumas and Enoch M. Jones. Jones conveyed his undivided interest to James P. Dumas. Application of Mary E. Dumas to the clerk of the District Court of Grayson County, claiming to be the surviving widow of James P. Dumas, followed by the return of an appraisement of the property in controversy and bond and oath of said Mary E. as survivor in community. Mary E. Dumas as such survivor conveyed the land to Scott S. Dumas, and he conveyed to John C. Lovell the land described as follows:
“Beginning at the southwest corner of L. C. Alexander’s 320-acre survey at a stone marked 'T. P. D.;’ thence north. 950 varas to southeast corner of Haskew’s 160-acre tract; thence west with Haskew’s and Abston’s south lines 1900 varas; said Abston’s southwest corner is said Smith’s west line; thence south 950 varas to the southwest corner of said Smith’s survey; thence east 1900 varas to the place of beginning.”
¶4The beginning call in this deed corresponds with the beginning call of the survey described in the petition.
¶5*193No proof of the date of her marriage or of the fact that Mary E. Dumas was the wife of James P. Dumas was made.
¶6The verdict of the jury was in the following language: “We the jury, find for the plaintiff and adjudge that he pay to the defendant the sum of seventy dollars for the value of improvements in excess of the use of the land; and locate the line between plaintiff and defendant, commencing at a pile of stone 371 varas west from the northwest corner of San Antonio & Mexican Gulf Railway Company survey; thence running north with the J. W. Williams survey 875 varas.”
¶7The court rendered judgment on this verdict in favor of plaintiff for the following described tract of land: “Situated, lying, and being in Tarrant County, Texas, and being the south one-half of the J. M. B. Smith survey of 640 acres of land, patented November 30, 1858, to J. P. Dumas and E. M. Jones, patent No. 844, volume 16, situated about eight miles south of Fort Worth, on the waters of Sycamore Creek, and described by metes and bounds as follows: Beginning at a point 371 feet west of the northwest corner of the San Antonio & Mexican Gulf Railway Company survey of 640 acres, the same being the southwest corner of said J. M. B. Smith survey; thence north, crossing the old Fort Worth and Fort Graham road 992-2- varas; thence east 2185 varas; thence south 992-2- varas to the southeast corner of said J. M. B. Smith survey; thence west 2185 varas to the place of beginning.” Also awarding writ of restitution to plaintiff on payment to the clerk of $70 adjudged to defendant for improvements.
¶8The first assignment of error is as follows:
“ The court erred in his charge to the jury in the following named part thereof, to wit:
“ ‘ Under the foreging instructions you will, therefore, determine which of the lines in dispute is the true division line between plaintiff’s and defendant’s land, and in order to this end you are instructed that the deeds offered in evidence before you leave the title to the south half of the J. M. B. Smith survey in plaintiff Lovell, and his west line is the line in controversy.’ Which said part of said charge is erroneous in this:
“ (1) Because there was no proof that the land sued for was the community property of James P. Dumas, deceased, and Mary A. E. Dumas.
“ (2) Because there was no proof that Mary A. E. Dumas, who executed the deed to Scott S. Dumas, bearing date of March 30, 1878, under and through which plaintiff claims, was the surviving wife of James P. Dumas, deceased, and as such authorized to file an inventory of community property of herself and James P. Dumas, deceased, and as such survivor convey the same.
“(3) Because the deeds, patent, etc., offered and read in evidence were not sufficient without such proof to establish title to the land in plaintiff.”
¶9Defendant requested the court to charge that “in no event can the *194plaintiff recover unless he has shown title to the south half of the J. M. B. Smith 640-acre survey to be in plaintiff. The papers read of themselves are not evidence that the said J. P. and M. A. E. Dumas were husband and wife when J. P. Dumas acquired title to the J. M. B. Smith 640 acres of land. Unless plaintiff has proved that the said J. P. and M. A. E. Dumas were husband and wife when the said J. P. Dumas acquired the said land, then return a verdict for defendant/’ Which the court refused to give.
¶10We think material error was committed because the court did not give the charge refused and omit the one it did give.
¶11A necessary link in plaintiff’s chain of title was evidence that Mary E. Dumas was the wife of James P. Dumas at the date of his acquisition of title to the land.
¶12Neither the recitals in the court proceedings when she qualified as survivor in community nor in her deed to her vendee are evidence of that fact.
¶13Other errors were committed during the trial and are complained of here, which not being likely to occur on another trial we do not think it necessary to enlarge upon.
¶14The jury should have returned a verdict in conformity with the Revised Statutes, title 96, chapter 2, upon defendant’s claim for improvements. The verdict and the judgment in that respect are both unwarranted by the law.
¶15The description of the land, or rather the want of any description in the verdict, did not authorize a recovery of the particular tract described in the judgment or in the petition.
¶16In fact a judgment for the very land described in the judgment is not authorized by the pleadings or the verdict.
¶17A difficulty no doubt arises in such cases as the present out of the fact that objects called for in the patent are not found on the ground, and the description of the land so far as the muniments of title go depends upon course and distance alone, while the contention of the plaintiff is that the real distances on the ground do not correspond with those mentioned in the patent and deeds.
¶18The true purpose of the petition is to describe the premises as they in fact are situated on the ground, and the pleading should so describe them, alleging that such is the correct description of the land intended to be conveyed by the patent and title deeds.
¶19If this is done the discrepancies in description need not occur again. Then if plaintiff succeeds the evidence will apply the land to the description in his pleadings and the verdict and judgment will properly describe it in the same way.
¶20The question of boundary, while not as the court charged the only issue in the case, is an important and may become the only contested one. It is a question of fact upon which we do not pass in any sense.
¶21*195Ho valid objection to the charge of the court as to the rules for ascertaining the true boundaries of the survey have been pointed out. The rules on the subject have often been declared by this court.
¶22The judgment is reversed and cause remanded.
¶23Reversed and remanded.
¶24Delivered May 31, 1889.