This is a writ of error to the Court of Civil Appeals of the Second Supreme Judicial District, from a judgment of that court reversing and rendering the judgment of the trial court.
The action was one of trespass to try title, and was brought by Edward Williams and others as plaintiffs against John T. Hardin and others as defendants. Elizabeth White and others intervened, claiming the land as heirs of Shelby Corzine and Sarah Corzine. Upon the trial of the cause, the defendants showed no title, and the court gave judgment for the *Page 504 plaintiffs for one undivided half of the land and for intervenors for the other half. The plaintiffs appealed, and the Court of Civil Appeals reversed the judgment of the trial court, and rendered judgment for the plaintiffs for the entire premises in controversy.
The land was patented to Shelby, "Corzine, his heirs or assigns," by virtue of a certificate for the unlocated balance of a former certificate issued to Nancy Ussery. The court found that the certificate belonged originally to the community estate of Shelby Corzine and Sarah Corzine who were husband and wife, and that the intervenors were their heirs. The plaintiffs claimed under one George W. Vivian, to whom Sarah Corzine executed a purported transfer of the certificate. The court found that that transfer, though attacked as a forgery, had been duly executed. The following is a copy of the instrument:
"The State of Texas, County of Harrison. — Know all men by these presents, that I, Sarah Corzine, administratrix of the estate of Shelby Corzine, by virtue of the power in me vested by the County Court of San Augustine county to execute and fulfill the contract of Shelby Corzine, deceased, do hereby assign and forever relinquish to George W. Vivian all the right, title, and interest of the late Shelby Corzine, his heirs and assigns, in and to the following described land certificate number 1594/1703, issued at Austin, August 23, 1850, to Shelby Corzine, assignee of Nancy Ussery, for 9,669,810 square varas, unlocated balance of headright certificate number 98, issued by the Board of Land Commissioners of San Augustine County to Shelby Corzine, assignee of Nancy Ussery, for one league and labor of land, dated 1st February, 1838. The said George W. Vivian having delivered up to me the bond of said Shelby Corzine to make title to one-half of said league and labor of land.
"In testimony whereof, I hereunto affix my hand and seal, this 12th day of June, 1855, using scroll by way of seal.
"SARAH CORZINE."
This instrument was signed by two subscribing witnesses, and was acknowledged by a notary public in March, 1859. In addition to the foregoing, the conclusions filed by the Court of Civil Appeals show the following facts: Shelby Corzine and Sarah, his wife, settled in San Augustine County in 1834 or 1835. He died in that county in 1839, and she died in 1870. Soon after her husband's death, Sarah Corzine took out letters of administration in San Augustine County upon his estate. It appears that sometime between 1840 and 1850 commissioners were appointed to make partition of the estate; that they made a partition and report, and that the report was adopted. No order was found upon the minutes or among the papers of the County Court of San Augustine County authorizing the administratrix to transfer the certificate, nor did any order appear closing the administration and discharging the administratrix. It was affirmatively shown that all the probate minutes of the county had *Page 505 been preserved. There was testimony that the administration had been, closed prior to the year 1855. The Court of Civil Appeals concluded, that no such order was made as that recited in the purported transfer or the certificate, and that at the time of its execution the administration had been closed. It was also found that there was no evidence of the existence of the bond for title front Shelby Corzine to George W. Vivian, except the recital in the instrument herein before set out.
Upon this state of facts, the Court of Civil appeals held, in effect, that Sarah Corzine, as surviving wife, had the power to transfer the certificate in discharge of her husband's written obligation to that effect, and that after the lapse of more titan thirty years, which has occurred since the transaction, it should be presumed that the bond for title, as recited by her, did actually exist. In this view we do not concur. That the survivor in community may sell the common estate for the purpose of paying the debts against it, is too well settled to admit of question in this court; and it would seem that the reasons for the exercise of a similar power in case of an outstanding title bond are equally cogent. But we do not understand that this power necessarily continues under all circumstances throughout the life of the survivor. When either the husband or the wife dies intestate, an undivided half of the common estate descends to his or her heirs, as the case may be, subject only to the payment of debts. With the qualification stated, their right in the property is equal to that of the survivor; and from that principle it would seem to result that there must be some period of time after which, in the absence of satisfactory proof to the contrary at; least, it should be presumed as a matter of law that all obligations, pecuniary or otherwise, chargeable upon the property had been discharged.
That the surviving wife can not sell the community property to pay community debts during an administration upon her deceased husband's estate, is not to be questioned. Whether she has power to do so or not after an administration has been closed which leaves the estate unsettled, we need not here decide. Here we have a case in which the husband had been dead more than fifteen years when the wife assumed to convey the community property in discharge of an obligation against the common estate. In the meantime she had taken out letters of administration upon the estate, it had been partitioned, either in whole or in part, and the administration had been closed; and we think that her power over the community as survivor for any purpose ought to be held to have ceased. And in this case, at least, it would seem that any presumption of power which should be indulged by reason of lapse of time, as to her power to make the conveyance, would be met by the counter-presumption that she had fully administered the estate and exhausted her power over the community property. We conclude that the deed, in so far as it sought to *Page 506 convey the interest in the certificate which belonged to her deceased husband in his lifetime, was executed without authority of law.
This brings us to the question of the effect of the purported transfer of Sarah Corzine upon her interest in the certificate. Although executed before the passage of our statute which dispensed with the use of seals, it is both signed and sealed by the assignor, and is therefore a deed. The recitals in the deed as to her authority were found not to be true. Not only had the court made no order directing her as administratrix to make the conveyance, but she had at the time ceased to be administratrix of her husband's estate. As administratrix she could convey nothing, and she does not attempt to convey in any other capacity. The instrument does not even purport to convey any interest but that, of her husband. It follows, that if it took effect at all, it must have been by way of estoppel. "Few rules of law are better established as of greater antiquity than that a man may bind himself irrevocably by putting his seal to a grant or covenant, and will not be allowed to contradict any declaration or averment contained in the instrument anti essential to its purpose. A recital or allegation in a deed or bond, which is certain in its terms and relevant to the matter in hand, will therefore be conclusive between the parties in any controversy growing out of the instrument itself or the transaction in which it was executed." Smith's Lead. Cases, 8 ed., Am. note, p. 819, and cases cited.
The doctrine of an estoppel by deed is essentially different from that of an estoppel in pais, and is founded upon the theory that the parties have contracted upon the basis of the recited facts. The instrument in question recites, that the grantor is the administratrix of her deceased husband's estate; that a court which could have had jurisdiction over the estate had ordered her to fulfill the obligation of a certain bond, by which her intestate had bound himself to make title to Vivian to one-half of the Nancy Ussery certificate, by conveying to the obligee a certificate which had been issued for the unlocated balance of the original. It purports to convey the interest of the intestate as directed in the order of the court. If the facts which are so recited, and which Sarah Corzine was estopped to deny, had been true, what would have been the effect of the deed? Clearly it would have been to convey the entire property in the certificate to the grantee, unless its operation is to be restricted by the use of the words, "all the right, title, and interest of the late Shelby Corzine."
But in the lifetime of the husband the community estate is managed in his name, and upon his death it is administered in his name, and sold and conveyed simply as his property. Therefore we are of opinion, that if the facts recited in the deed had been true it would have passed not only the interest of the deceased husband in the certificate, but also that of the wife. Sarah Corzine, the grantor, was therefore estopped by the deed to claim any interest in the certificate as against Vivian, the grantee, and *Page 507 those claiming under him, and her heirs are bound as privies by that estoppel. It follows that the intervenors could claim nothing through her; but they are not precluded from claiming as the heirs of Shelby Corzine the interest which she had no power to convey, and which did not pass by the deed made by her.
It follows that the plaintiffs are entitled to recover one-half of the land located by virtue of the certificate for the unlocated balance of the Nancy Ussery league and labor; and that the intervenors are entitled to recover the other half, as adjudged by the trial court.
The judgment of the Court of Civil Appeals is accordingly reversed, and the judgment of the District Court of Eastland County is in all things affirmed.
Affirmed.
Delivered May 18, 1893.