We, therefore, hold that the sheriff's deed did not include the triangle involved. Magnolia Petroleum Co. v. Jones, 138 Tex. 67, 158 S.W.2d 548; McKee v. Stewart, 139 Tex. 360, 162 S.W.2d 948; Luckett v. Scruggs, 73 Tex. 519, 11 S.W. 529; Spearman v. Mims, Tex.Civ.App., 207 S.W. 573. Plaintiffs assert that regardless of their record title, they have shown limitation title under the 10-year statute.
However, if this had been at trial before the court, his findings should not have included the evidence which he considered as establishing the facts on which his findings were based. Spearman v. Mims et al. (Tex.Civ.App.) 207 S.W. 573. Appellants assign as error the action of the trial court in allowing Guy Rogers a fee as an attorney for representing appellees, but an examination of the record will reveal that no part of this attorney's fee is charged to appellants, but that appellee Rogers had deducted from the contribution he shall make the amount of the attorney's fee, which is added to the contributions required of the other appellees, none of which is charged against the appellants.
As the court's findings are much in the nature of conclusions, we cannot clearly understand it without going to the statement of facts filed. Spearman v. Mims, 207 S.W. 574. In trespass to try title, the burden is on the plaintiff to deraign his title from and under the sovereignty of the soil, unless there is a common source of title shown.
"That case is essentially different from this one, and it is our opinion that, as defendants had it in their power to obtain the correction at any time, without waiting until 1901, it was practically in their power to have sued at any time since 1871 for so much of the land as they were entitled to under the certificate, and they could not, simply by refraining from making the correction, hold their claim to the land in abeyance, and defeat the running of the statute upon that ground." See, also, Udell v. Peak, 70 Tex. 547, 7 S.W. 786, Robles v. Cooksey, 70 S.W. 584, Hogue v. Baker, 92 Tex. 58, 45 S.W. 1004, and Spearman v. Mims, 207 S.W. 573. Finding no error in this record, this case is in all things affirmed.