Stayton, Associate Justice.
It is unnecessary to consider the assignment of error which presents the question of the propriety of the ruling of the court below in overruling the first, second, third, fourth and fifth special exceptions filed by the defendants to the plaintiff’s supplemental petition, which contained averments as to the understanding and agreement between Forbes and Tibbies at the time the instrument of date December 26, 1836, was executed, and as to the circumstances which then attended the parties. In view of the fact that the court below placed the same construction upon that instrument as the supplemental petition alleged was the true intent and meaning of the parties, and this without basing that construction upon any evidence introduced under that petition, the ruling was unimportant. For, if the construction placed upon the instrument was the correct one, no injury could have resulted from the averments of the petition, which, in effect, alleged that the parties intended by the instrument to make just such a contract as the court held was evidenced by it.
The sixth exception presented the question of stale demand. The plaintiff, in his pleadings, relied upon a legal title evidenced by a patent from the state to himself, and stated no act of possession or claim by the defendants which could make available to the defendants, by exception, the defense- of stale demand.
[305]*305The third assignment calls in question the correctness of the construction by the court of the instrument executed by Tibbies to Forbes, of date December 26, 1836.
In the construction complained of the court, in effect, construed that instrument to convey to Forbes an undivided one-half of the land to which Tibbies was entitled, as a colonist or citizen of Texas, and to empower him to sell that half, and no more. We are of the opinion that the construction given to that instrument was the true one, testing the instrument alone by the language in which it is written.
If we take into consideration, as did the judge who tried the cause, the surroundings of the parties, the condition of the appellant’s -claim for land at that time, the uncertainty as to whether the appellant then had a claim to land such as could be transferred, and, if so, as to the proper manner of its transfer, all of which is illustrated by many cases which have come before this court and have become a, part of the public history of the country, of which the courts take notice, there can be no reasonable doubt as to the true construction of that instrument.
On the trial, the appellee, in answer to questions, stated that he knew in 1852 where his land was located, and that he did not know that John Forbes was asserting claim to it. This evidence was objected to, and it is urged that its admission was in violation of the statute which forbids parties, in certain cases, to testify as to statements by, or transactions with, deceased parties. R. S., 2248.
Fieither of the matters testified to by the witness violated the rule invoked, for they related simply to the knowledge and want of knowledge of facts, without it being made to appear that such knowledge or want of knowledge in any way depended upon any statement by, or transaction with, John Forbes.
The sixth and eighth assignments of error are based upon the refusal of the court to give certain charges presenting in behalf of the defendants the defense of innocent purchasers without notice. To avail one of such a defense it is ordinarily necessary to show that the person setting it up has purchased from some person having the apparent title without notice that he had parted with the title he once had.
The land in controversy in this case was patented to Tibbies, and whatever right the appellants have must come through John Forbes, and this through the instrument of date December 26, 1836. That instrument, of which the appellants stand in law charged with notice, shows that, at most, John Forbes was only entitled to an [306]*306undivided half of such land as Tibbies might be entitled to as a citizen or colonist, and that he had no power to alienate any more. That instrument was the sole basis for any claim Forbes, or those claiming to hold under him, or by a conveyance made by him as attorney in fact, had.
The conveyance from Forbes, under which the appellants claim, does not profess to convey any right which he had, but to convey the estate of Tibbies; the instrument, which the appellants claim gave the power so to convey, upon its face negatives any such power, and limits the power of Forbes to such sales as he might make of the interest intended to be secured to him.
If we give no effect, upon the question of notice to the appellants, to the fact that, under the instrument of date December 26, 1836, John Forbes caused the land to which Tibbies was entitled to be patented in two separate tracts, each containing an equal number-of acres, one of which was patented to himself and the other toTibbies, thereby so far as he could, partitioning the land betweenTibbies and himself, and look only to the relation of Forbes ■and Tibbies to the common title under the agreement between them, it will appear that .the appellants cannot be considered as innocent purchasers as against Tibbies. They had notice of his right and of' the want of power in Forbes to divest it.
The instrument of December 26, 1836, in terms made Forbes and Tibbies tenants in common of the land to be acquired through Tibbies’ claim for land, and, as before said, it was notice to all persons claiming through it, of the rights and relationship of each of the parties in and to the land.
It is well settled that a purchaser from one tenant in common cannot acquire and hold to the prejudice of a co-tenant any specific portion of the common estate. Persons so taking must hold subject to-all equities existing between the co-tenants, to be worked out in the partition of the land. That Tibbies was entitled to one-half of the-land cannot be questioned, and by restricting his claim to the land patented to himself, after he had brought suit for that as well as-the tract patented to Forbes, he may be held to have acquiesced in the partition made of the land by Forbes at the time both tracts were patented.
All of the persons who were claiming under both patents were before this court, and if those who claimed under the conveyances which Forbes made in his own right and as attorney for Tibbies had sought to have had the entire land covered by the two patents so partitioned as to set apart to such one as showed himself entitled to re[307]*307ceive it, the share to which Forbes was entitled under the agreement with Tibbies, that question could have then been disposed of; but no such issue was raised. One defendant claimed title to the land patented to Forbes, and the other defendants set up no claim to any part of the tract patented to Tibbies upon the ground that the conveyance made by Forbes to Starr did not convey land equal in value to one-half of the two tracts, and that therefore there was an interest in the tract patented to Tibbies to which Forbes would have been entitled to give him in value one-half of the land, which would pass by the conveyance made by Forbes as attorney in fact for Tibbies. If such claim had been made, -it would then have been necessary, if Tibbies resisted it, to inquire what effect the taking of a patent to himself by Forbes for one-half of the number of acres covered by the claim of Tibbies ought to have upon such a claim after the lapse of about thirty years.
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Stayton, Associate Justice.
It is unnecessary to consider the assignment of error which presents the question of the propriety of the ruling of the court below in overruling the first, second, third, fourth and fifth special exceptions filed by the defendants to the plaintiff’s supplemental petition, which contained averments as to the understanding and agreement between Forbes and Tibbies at the time the instrument of date December 26, 1836, was executed, and as to the circumstances which then attended the parties. In view of the fact that the court below placed the same construction upon that instrument as the supplemental petition alleged was the true intent and meaning of the parties, and this without basing that construction upon any evidence introduced under that petition, the ruling was unimportant. For, if the construction placed upon the instrument was the correct one, no injury could have resulted from the averments of the petition, which, in effect, alleged that the parties intended by the instrument to make just such a contract as the court held was evidenced by it.
The sixth exception presented the question of stale demand. The plaintiff, in his pleadings, relied upon a legal title evidenced by a patent from the state to himself, and stated no act of possession or claim by the defendants which could make available to the defendants, by exception, the defense- of stale demand.
[305]*305The third assignment calls in question the correctness of the construction by the court of the instrument executed by Tibbies to Forbes, of date December 26, 1836.
In the construction complained of the court, in effect, construed that instrument to convey to Forbes an undivided one-half of the land to which Tibbies was entitled, as a colonist or citizen of Texas, and to empower him to sell that half, and no more. We are of the opinion that the construction given to that instrument was the true one, testing the instrument alone by the language in which it is written.
If we take into consideration, as did the judge who tried the cause, the surroundings of the parties, the condition of the appellant’s -claim for land at that time, the uncertainty as to whether the appellant then had a claim to land such as could be transferred, and, if so, as to the proper manner of its transfer, all of which is illustrated by many cases which have come before this court and have become a, part of the public history of the country, of which the courts take notice, there can be no reasonable doubt as to the true construction of that instrument.
On the trial, the appellee, in answer to questions, stated that he knew in 1852 where his land was located, and that he did not know that John Forbes was asserting claim to it. This evidence was objected to, and it is urged that its admission was in violation of the statute which forbids parties, in certain cases, to testify as to statements by, or transactions with, deceased parties. R. S., 2248.
Fieither of the matters testified to by the witness violated the rule invoked, for they related simply to the knowledge and want of knowledge of facts, without it being made to appear that such knowledge or want of knowledge in any way depended upon any statement by, or transaction with, John Forbes.
The sixth and eighth assignments of error are based upon the refusal of the court to give certain charges presenting in behalf of the defendants the defense of innocent purchasers without notice. To avail one of such a defense it is ordinarily necessary to show that the person setting it up has purchased from some person having the apparent title without notice that he had parted with the title he once had.
The land in controversy in this case was patented to Tibbies, and whatever right the appellants have must come through John Forbes, and this through the instrument of date December 26, 1836. That instrument, of which the appellants stand in law charged with notice, shows that, at most, John Forbes was only entitled to an [306]*306undivided half of such land as Tibbies might be entitled to as a citizen or colonist, and that he had no power to alienate any more. That instrument was the sole basis for any claim Forbes, or those claiming to hold under him, or by a conveyance made by him as attorney in fact, had.
The conveyance from Forbes, under which the appellants claim, does not profess to convey any right which he had, but to convey the estate of Tibbies; the instrument, which the appellants claim gave the power so to convey, upon its face negatives any such power, and limits the power of Forbes to such sales as he might make of the interest intended to be secured to him.
If we give no effect, upon the question of notice to the appellants, to the fact that, under the instrument of date December 26, 1836, John Forbes caused the land to which Tibbies was entitled to be patented in two separate tracts, each containing an equal number-of acres, one of which was patented to himself and the other toTibbies, thereby so far as he could, partitioning the land betweenTibbies and himself, and look only to the relation of Forbes ■and Tibbies to the common title under the agreement between them, it will appear that .the appellants cannot be considered as innocent purchasers as against Tibbies. They had notice of his right and of' the want of power in Forbes to divest it.
The instrument of December 26, 1836, in terms made Forbes and Tibbies tenants in common of the land to be acquired through Tibbies’ claim for land, and, as before said, it was notice to all persons claiming through it, of the rights and relationship of each of the parties in and to the land.
It is well settled that a purchaser from one tenant in common cannot acquire and hold to the prejudice of a co-tenant any specific portion of the common estate. Persons so taking must hold subject to-all equities existing between the co-tenants, to be worked out in the partition of the land. That Tibbies was entitled to one-half of the-land cannot be questioned, and by restricting his claim to the land patented to himself, after he had brought suit for that as well as-the tract patented to Forbes, he may be held to have acquiesced in the partition made of the land by Forbes at the time both tracts were patented.
All of the persons who were claiming under both patents were before this court, and if those who claimed under the conveyances which Forbes made in his own right and as attorney for Tibbies had sought to have had the entire land covered by the two patents so partitioned as to set apart to such one as showed himself entitled to re[307]*307ceive it, the share to which Forbes was entitled under the agreement with Tibbies, that question could have then been disposed of; but no such issue was raised. One defendant claimed title to the land patented to Forbes, and the other defendants set up no claim to any part of the tract patented to Tibbies upon the ground that the conveyance made by Forbes to Starr did not convey land equal in value to one-half of the two tracts, and that therefore there was an interest in the tract patented to Tibbies to which Forbes would have been entitled to give him in value one-half of the land, which would pass by the conveyance made by Forbes as attorney in fact for Tibbies. If such claim had been made, -it would then have been necessary, if Tibbies resisted it, to inquire what effect the taking of a patent to himself by Forbes for one-half of the number of acres covered by the claim of Tibbies ought to have upon such a claim after the lapse of about thirty years.
Ho such question was presented, and the appellants base their claim upon the power of Forbes to convey the interest of Tibbies in the land.
Under the issues made and facts presented the court did not err in refusing to give the instructions asked by the appellant.
The court rvas asked to instruct the jury, in effect, that Tibbies would be estopped to claim the land if Forbes had openly claimed and sold it in 1851, if Tibbies had taken no active measures to assert title in himself. Ho adverse possession of the land was shown, it was patented to Tibbies, and we know of no rule of law which requires the owner of land, not adversely occupied, to take any step to set aside an unauthorized conveyance of it, or otherwise to be precluded from asserting his claim. If the appellants had not produced the power under which Forbes acted, much in favor of his power, after the lapse of nearly thirty years, might be presumed; but where the instrument conferring the sole power which it is claimed he had is produced, and contains no such power as is claimed, such presumptions will not be indulged.
The absence of the letters between Fitzgerald and Tibbies was sufficiently accounted for, and the sole purpose of proving their contents was to rebut the proof that Tibbies recognized as valid the conveyance of his land by Forbes, and to show that he asserted claim to it; for that purpose the evidence was admissible, and especially so where the appellants were seeking to bind him by the unauthorized act of Forbes, upon the ground of his silence.
It is urged that a new trial should have been granted upon the ground that the verdict was contrary to the evidence, the second [308]*308clause of the charge of the court being considered the laxv applicable to the facts.
We are of the opinion that the charge given was not called for and was not a proper charge, for there xvas no evidence to justify it; and had the jury found in favor of the appellants under it, this xvould have been good ground for a reversal. Such being the case," the verdict being in favor of the appellee, it should not have been set aside.
The judgment is affirmed.
Affirmed.
[Opinion delivered November 6, 1883.]