After a careful consideration of appellees' motion for rehearing, we find no sufficient reason for changing the ruling heretofore made on the controlling question in the case. Our conclusion, *Page 366 that the District Court of Galveston County had no jurisdiction to order the sale under which appellees claim, does not rest so much upon the fact that the parties to the proceeding were not divided into plaintiffs and defendants, as upon the fact that the pleading which forms the basis of jurisdiction not only does not invoke but in fact precludes the exercise of judicial functions. It shows that all the parties to the proceeding had agreed not only as to all matters that could have been submitted to judicial determination, but also upon the officer to be appointed to make the sale, and the time, place, and manner in which it should be made. It indicates that it was not only intended that nothing should be submitted to judicial investigation and decision, but that the ministerial acts to be performed by the court were of a perfunctory character, requiring no exercise of judgment or discretion.
If we could find sufficient reason for holding that the proceeding was a partition suit, we could concur with counsel for appellees in the contention that the court had jurisdiction. But in our opinion it was merely an application for the appointment of an agent to sell certain real estate. It asked the court to exercise, independently, certain functions which it had no power to exercise, separate and apart from other proceedings. Because the court may have had the power in a partition suit to order the property sold, it does not follow that such power existed independently of such a suit.
But little need be added on the question of estoppel. If the proceedings in the District Court of Galveston County were void for want of jurisdiction, the fact that Mrs. Blagge authorized them does not estop her. Jurisdiction of a subject matter can not be conferred by consent; and if the proceedings in question were void, all persons holding under them are charged with a knowledge of their invalidity. On this branch of the case we have considered the question of estoppel only as a defense to Mrs. Blagge's right to recover the land. Other equitable relief can not be had under the plea of not guilty. Fuller v. O'Neil,69 Tex. 349.
Inasmuch as the case must be remanded for trial upon other issues, and as it is not correct to say that there is no testimony whatever tending to establish an estoppel, we have concluded to grant appellees' alternative request, and reverse and remand the entire cause. All the costs of this appeal will be taxed against the appellees. Except as stated, the motion for a rehearing will be refused.