This is an action of trespass to try title to 225 acres of land, instituted by appellees against appellants. Appellants answered by pleas of not guilty and limitation. The cause was tried by the court and resulted in a judgment in favor of appellees.
It was agreed that William Taylor was the common source. Appellees claimed the land through an execution sale made by virtue of a judgment in a case styled B. Weil v. Win. Taylor, and appellants claimed the land as the heirs of William Taylor and their mother. The land was the community property of William Taylor and his first wife. While it is inferentially found by the court that appellant were the heirs of the first wife of William Taylor there is no proof of any but Z. W. Taylor being her heir. It appears from the statement of facts that it was admitted by both parties that William Taylor is the common source of title, and that appellants are the heirs and legal representatives of said William Taylor. We find that the title to the land was in appellees. Other facts are found in connection with the discussion of the assignments of error.
It appears that B. Weil obtained a judgment, on April 9, 1867, against William Taylor for $588.58, and costs, and that it became dormant by failure to issue execution within a year from its date. Suit was then brought by the plaintiff to revive the judgment and to correct the former judgment in a matter of interest and a judgment was obtained to that effect. The last judgment recited that the former one had been obtained, that it was rendered for an insufficient amount and that it had become dormant, and it revived the judgment and corrected the same. Under these circumstances, the cause being tried by the court, it does not appear how appellant could have been prejudiced by the admission in evidence of the first judgment. The recitals in the second judgment contained everything of importance in the first one.
If it should be held that the judgment of October 8, 1868, was void insofar as it sought to increase the amount of the former judgment, that would not invalidate that portion of it which revived the former judgment. The one part is separable from the other. But clearly under the provisions of article 1357, Revised Statutes, the mistake or miscalculation could be corrected at any time on application of either party, after the opposite party had been given notice of the application for such amendment. (Russell v. Miller, 40 Tex. 494; Chestnut v. Pollard, 77 Tex. 86.) The error was one that could be corrected from the record itself, and was a case peculiarly within the purview of the statute. It was a clerical error in the calculation of interest that was corrected. (Missouri Pac. Ry. v. Haynes, 82 Tex. 448; Whittaker v. Gee,63 Tex. 435.) But as before stated if the attempt to amend was ineffectual, the revival of the former judgment was not affected thereby.
The original execution, under which the land in controversy was sold, was destroyed by fire and the court admitted in evidence an entry on the execution docket of the district and county clerk of Jasper County. That entry showed that the execution was issued October 3, 1872, for debt and costs, $514.21, and was returnable to November term, 1872. *Page 64 There was also an entry of the sheriff's return showing that the execution had been levied on the land in controversy, that the proper advertisement had been made and that on the first Tuesday in November, 1872, the property had been sold to appellees for the sum of $135. This was followed by a statement of how the money was applied by the sheriff. Appellant objected to the entries because the execution and sale were void, as being without the authority of any court, because the return fails to correctly number or style the cause in which the execution was issued and because it was vague and uncertain. There is no merit whatever in these objections. The style of the case was given and it was sufficiently identified. No variance is shown by reason of the amount for which execution was issued being larger than the original amount of the judgment. It would very naturally be larger in 1872 than it was in 1868, as it had been bearing interest all the time.
It seems to be a contention that the execution having been issued by virtue of the judgment of 1868, and that judgment not authorizing an execution except under the judgment of 1867, the execution was necessarily void. The last judgment recited the amount of the first judgment, stated that there had been a miscalculation of the interest and then gave the correct amount of interest and additional costs, revived the former judgment and awarded executed "thereupon." It is not essentially necessary to the issuance of an execution that it be provided for in the judgment, and an execution could have been issued under the judgment of 1868 although it was not provided for therein. (Freeman, Judg., sec. 2; Roberts v. Connellee,71 Tex. 11; Hartz v. Hausser, 14 Texas Ct. Rep., 141.)
It does not appear that any execution had been issued under the judgment until 1872, and if that be true, the judgment was dormant. However, a sale under a dormant judgment is not void but only voidable, and can only be attacked in a direct proceeding instituted for that purpose. It can not be attacked in a collateral proceeding. (Sydnor v. Roberts, 13 Tex. 598; Hancock v. Metz, 15 Tex. 205; Hawley v. Bullock, 29 Tex. 217 [29 Tex. 217]; Boggess v. Howard, 40 Tex. 153 [40 Tex. 153]; Laughter v. Seela, 59 Tex. 177 [59 Tex. 177]; Maverick v. Flores, 71 Tex. 110.)
The evidence as to occupancy of any part of the land in controversy is too vague and uncertain to support a plea of limitations. It is not shown whether the parties who at different times occupied the house did so as tenants of appellants or not. Z. W. Taylor swore that a part of the old William Taylor farm which had been in cultivation for 30 or 35 years, was on the land in controversy, but the nearest he could come to fixing the number of acres was from 10 to 40 acres. He then swore that he did not know where the line of the land in controversy was, clearly showing that he knew nothing about whether any of the 225 acres in controversy was in the farm or not. He said the house was near a line made by Mr. Blake. The latter testified that he was a surveyor but did not find the line between the land in controversy and the 490 acres belonging to appellants. Evidently he knows nothing about the location of the line and yet from his calculations he testified that the house of W. D. Taylor was about twenty feet from the line. Z. W. Taylor also swore that he, as agent for Mrs. Trotti and Mrs. Jones, had, four or five years ago, sold some oak timber off the land in *Page 65 suit. The foregoing is substantially what was sworn in support of the pleas of limitation. It is clearly insufficient to establish title by limitations. The house of W. D. Taylor, spoken of by the witness Blake, was built less than ten years prior to the institution of this suit.
We can not agree with the trial judge in his ruling that appellants were precluded from showing that the land was the community property of their father and mother, on the ground that they were estopped from claiming through their mother by reason of their agreement that their father was the common source. The rule is well established that when an agreement is made as to a common source the defendant can not question the validity of any link in the chain of title between the common source and the sovereignty of the soil. (Pearson v. Flanagan,52 Tex. 266; Glover v. Thomas, 75 Tex. 506 [75 Tex. 506]; Evans v. Foster, 79 Tex. 48.) But it does not seem to us that it is an infringement of that rule to hold that appellants were authorized to show that though the legal title was in William Taylor, their father, that their mother had an equitable title to one-half of it. There was no attack upon the title of William Taylor, nor on any link between that title and the State. Appellants did not attempt to attack that title, they admitted it, but they had the right to show that although the legal title was in William Taylor, that it was community estate and one-half of the land belonged to his wife. As said in the case of Fox v. Brady, 1 Texas Civ. App. 590[1 Tex. Civ. App. 590], "We can not perceive how the claim by appellees under this deed as a common source could be construed to be inconsistent with their claim that the property conveyed was community property." It is held that the question of common source is one of burden of proof, a rule of evidence and not of estoppel. (Howard v. Masterson, 77 Tex. 41; Rice v. St. Louis, A. T. Ry., 87 Tex. 90.)
In the case last cited the court in discussing this question said: "Notwithstanding the proof of the insufficiency of his title under the common source, the defendant may still defeat the action by showing that there is a title superior to that of the person or persons under whom both claim, and that he is holder of that title; and even without showing that he holds such superior title, it may be that his defense ought to prevail, provided he prove affirmatively not merely that someone had the title anterior to that of common source, but also that such previous title never vested in the common source. . . . Since the plaintiff must prove his title in order to recover, it would seem that when he has shown title under the common source, that proof by defendant, however made, that the common grantor had no title ought to be a defense."
The trial court also held that the burden rested upon appellants to show that appellees were not purchasers for value without notice of their equitable title to their mother's community interest in the land and that having failed to make that proof appellees should recover, upon their proof of having purchased the legal title to the land at execution sale. The ruling was correct, for when appellees showed that they had bought the land at a regular and legal execution sale under a judgment against William Taylor, they had made out a primafacie case and it *Page 66 then devolved upon appellants to prove the superiority of their title. (Simmons Hardware Co. v. Davis, 87 Tex. 146.)
William Taylor had the legal title to the land in him, and his wife only had an equity of one-half of the land. When the sale under execution took place the legal title to the whole of the land passed to appellees, and in order for appellants, the holders of the equities of the wife, to recover it devolved upon them to prove their equities. To do that it was necessary not only to prove that their mother was the owner of one-half of the land but that appellees were not purchasers for value without notice. McAlpine v. Burnett, 23 Tex. 650; Baldwin v. Root, 90 Tex. 546; Turner v. Cochran, 94 Tex. 480 [94 Tex. 480]; Kimball v. Houston Oil Co., by this court not yet published.
The reason for the rule is thus given in McAlpine v. Burnett: "The principle is manifest, upon the mere statement of the proposition, for every complete legal title, prima facie, carries with it, and covers the equitable title. In any case it does not so include it, in fact, the party claiming the equitable title must aver and prove it." The rule is the same as prevails in the case of a junior purchaser, who must assume the burden of proof, because the legal title is in the prior purchaser. In this case the equitable title was neither averred or proved.
Affirmed.