The Court of Civil Appeals in its first opinion in this case reversed the judgment of the District Court and rendered judgment in favor of appellant, but upon motion for rehearing they affirmed the judgment of the court below. The suit was brought by appellant against appellees to recover seven and two-fifths acres of land adjoining the town of Plainview in Hale County, Texas, in an action of trespass to try title. The land was the property of one Lowe, to whom it was granted upon pre-emption certificate. Lowe died leaving two children, Mattie N. and Janie A., the ages being respectively *Page 199 ten and five years. One C.H. Gilbert became the administrator of the estate and applied for an order of sale, describing the property to be sold "as all those lots yet unsold, being situated in the County of Hale and State of Texas, and better known as the north half of the town of Plainview, patented to E.L. Lowe, by virtue of the pre-emption laws of the State of Texas." In the report of sale by the administrator the property is described as follows: "Also 7 2-5 acres out of the N.E. quarter of E. Lowe pre-emption." The order approving the sale, dated November 7, 1890, contains no description of the land whatever. The Court of Civil Appeals in their first opinion held that the description of the land was insufficient and that the sale did not pass the title; but in their opinion on motion for rehearing they say: "The administrator filed his final account on February 18, 1893, which report appears never to have been acted upon, and on January 15, 1894, was removed as administrator of the estate on account of his continued absence from the State. No other administrator has ever been appointed, but said Lowe's daughters have taken charge of and disposed of the estate as though the same had been duly closed. In thus accepting what remained of the estate of their father the heirs undoubtedly received the benefits of the proceeds of the sale of the land in controversy. If they did not receive a part of the proceeds as such they at least received property of the estate which otherwise would have been liable for the payment of debts against the estate and in either event are in no position to seek a recovery of the land. It is not necessary for us to decide whether the conduct of the heirs in passively approving the administration and accepting what remains of the estate amounts to an absolute estoppel to recover the land unlawfully sold, or merely imposes upon them the duty of tendering a repayment of the purchase money, since at no time did the plaintiff, who claims by mesne conveyances under them, offer to restore the purchase money."
We concur with the court in holding that the sale was invalid by reason of failure to describe the land, but we can not assent to the proposition that the grantees of the heirs of Lowe are estopped to assert any claim to it. We see no element of estoppel in the facts of the case. To hold that the heirs are estopped by reason of the fact that they received the remainder of the property without entering any protest we think is untenable, because we can not see that the fact that the heirs received and disposed of that which was unsold should deprive them of an assertion of a right to that which was illegally sold, nor do we agree with the court in that the property could not be recovered without paying back the purchase money. It is held distinctly in the case of Fuller v. O'Neil, 69 Tex. 349, that in order to assert an equity of subrogation in property that had been illegally sold the facts must be pleaded. We think this is a correct ruling, and was approved by this court in the case of Crow v. Fidler, 3 Texas Civ. App. 582[3 Tex. Civ. App. 582], and in Matthews v. Moses, 21 Texas Civ. App. 496[21 Tex. Civ. App. 496], in which applications were made to this court for writs of error and refused. See also Black v. Garner, 63 S.W. 918. *Page 200
The case of Williams v. Wilson, 76 Tex. 69, is seemingly in conflict with the decision last cited, but in that case the land had been leased for a period of ninety-nine years, which was held by the court to be equivalent to a sale and therefore void under the law and prohibited by the statute, during the life time of the grantee, which authorized the granting of a certificate. In that case the heirs sued directly to set aside the lease and it was held they could not recover without paying back the purchase money which had been paid for the lease. Since in an action of trespass to try title a defendant without a plea may show any fact that will defeat the plaintiff's right to recover, since in making out their case they showed the lease and the purchase money that was paid for it they were held not entitled to recover without tendering the consideration shown to have been paid their ancestor for the land. We think that case clearly distinguishable from this, in which the attempt is to subrogate the parties claiming under the purchase to a lien upon the lands for the purchase money on the ground that it had been used in paying the debts of the estate and the heirs had derived the benefit thereof.
We conclude that the plaintiff was entitled to recover the land and therefore reverse the judgments of the Court of Civil Appeals and District Court and here render judgment for plaintiff in error.
Reversed and rendered.
ON MOTION FOR REHEARING. Opinion delivered January 27, 1909. Upon a consideration of the motion for rehearing in this case we have reached the conclusion that we were wrong in reversing and rendering the judgment instead of remanding the cause for a new trial. We think the circumstances of the case are such as to demand that the appellee should have an opportunity to amend his pleading so as to claim the money paid the administrator for the land as a condition to its recovery. Accordingly the judgment is reversed and the cause remanded for a new trial.
ON MOTION FOR REHEARING. Opinion filed March 31, 1909. These are motions for a rehearing, No. 2000, by defendants in error, which urges that the previous decision of this court is radically wrong; No. 2025 is by plaintiff in error, in which it is prayed that the judgment of this court should be rendered for the appellant for the land — conditioned upon his paying to defendants in error the money originally paid the administrator for the land, with legal interest thereon. We are of opinion that No. 2000 should be overruled; and it is accordingly so ordered. No good reason suggests itself to our minds why the prayer of No. 2025 should not be granted. It accomplishes the object for which we had remanded the cause. It is therefore ordered, that the motion in this respect be *Page 201 granted and that judgment be here rendered that the plaintiff in error do have and recover of the defendants in error the land in controversy, on condition that he pay defendants in error the amount bid for said land at the attempted sale and interest thereon to this date.
Reversed and rendered.