(after stating the facts as above). [1] The theory upon which appellee was awarded the relief he sought was that, as the owner of the unpaid purchase-money notes and transferee of the legal title remaining in Hightower as one of Smith's vendors, he was entitled on Smith's failure to pay the notes to recover the land. That appellee was entitled to recover at least a part of the land is clear, unless his suit therefor was barred by force of a provision in the act of April 3, 1913 (General Laws, p. 250; articles 5693, 5694, 5695, Vernon's Statutes), as follows:
"Those owning the superior title to land retained in any deed of conveyance, or his transferee and those subsequently acquiring such superior title by transfer, shall have twelve months after this act takes effect within which to bring suit for the land if their claim to the land is not otherwise invalid and unless such suit is brought within twelve months after this act takes effect, they shall be forever barred from bringing suit to recover the same." Article 5695.
The act took effect July 1, 1913. Appellee's third amended petition, as shown in the statement above, was not filed until June 11, 1915, nearly two years after the time when the act became effective. It is plain, therefore, if the filing of this petition was the commencement of appellee's suit for the land, it was barred when commenced. We are of opinion, however, appellee's suit for the land was commenced by the filing, July 7, 1913, of his first amended petition, in which, while seeking a recovery on the note due November 1, 1909, and a foreclosure of the lien retained to secure it, he also sought to have the title to the land, or a part thereof sufficient to satisfy the amount unpaid of the other two notes, decreed to be in him, or, if not, then by the filing, January 5, 1914, of his second amended petition, in which he asked that the title to the land be declared to be in him. While we did not think when the cause was before us on the first appeal (171 S.W. 816), and do not now, that the pleadings of appellee authorized the judgment obtained by him, we think they sufficiently showed the commencement of a suit for the land so as to stop the running of the statute of limitations. It has been repeatedly held that pleadings bad on general demurrer may be sufficient to stop the running of the statute. Killebrew v. Stockdale,51 Tex. 529; Kauffman v. Wooters, 79 Tex. 205, 214, 13 S.W. 5419; Day v. Van Horn Trading Co., 183 S.W. 85, 87.
Whether appellee, as the transferee of only one of Smith's two vendors, was entitled as against Smith to recover all the land, or only an undivided half of it, is a more difficult question to answer. In view of the holding that the title remaining in the vendor is held by him for the benefit alone of the holder of purchase-money notes so long as they remain unpaid, we would not hesitate to say that the recovery had by appellee against Watkins on his disclaimer of any claim of right or title to the land operated to pass to appellee the title held by Watkins in trust for him, but for the further holding that the assignee of such notes cannot by suit against the vendor have the title remaining in him devested. Farmers' Loan Trust Co. v. Beckley, 93 Tex. 207,54 S.W. 1030; Douglass v. Blount, 95 Tex. 369, 67 S.W. 489,58 L.R.A. 699; Atterberry v. Burnett, 102 Tex. 118, 113 S.W. 528; White v. Cole, 87 Tex. 500, 29 S.W. 759. As, however, the latter holding was on the theory that the assignee as such has no interest in the land, we have concluded it should not be allowed to control in this case; for Tipps, as the transferee of the title in Hightower, did have such an interest. The conclusion reached is, we think, authorized by the ruling made in Anderson v. Silliman, 92 Tex. 560 50 S.W. 579, where Judge Gaines said:
"We are also of the opinion that the legal title remained in the vendors, to wit, Anderson. Mrs. Snider and Williams, and that the acquisition by Silliman, the holder of the purchase-money note, of the legal title of Williams and Mrs. Snider, was sufficient, upon default in the payment of the note, to enable Silliman or his executrix to sue Anderson for the recovery of the land. White v. Cole, 87 Tex. 500 [29 S.W. 759]. Anderson had parted with his interest in the note, and he had no interest in the land, save the naked legal title. Silliman, if not entitled to claim the whole of the land. was entitled to an undivided interest, and, as a tenant *Page 395 in common, had the right to recover against one holding merely the legal title."
The judgment is affirmed.