The appellee brought trespass to try title to a tract of land patented to Mrs. 0. Y. Bulkley, and proved a regular chain of title from J. H. and D. D. Atchison down to himself. He claimed that the Atchisons were the heirs of the patentee, but the only proof made of their heirship was by the introduction of a decree of the district court of Grimes county vesting in them, as heirs of Mrs. Bulkley, an undivided one-half of the land in controversy. Appellant was not a party to that decree, and we cannot see how he is to be bound by its adjudication of the heir-ship of the Atchisons. The decree contains recitals which indicate the proof of heirship in that case was made by the admission of the parties, but if it was proved and formally adjudged to be the fact, that fact in this suit cannot be proved by the simple production of that decree. Wharton’s Ev., sec. 823; Freeman on Judgments, 416 and 417.
Mor does the fact that the court had jurisdiction of the parties and the subject-matter, and by the decree vested in the Atchisons the title to the land, obviate the necessity of the proof of their heir-ship in this case. Unless Mrs. Bulkley was dead and they were her heirs, her heirs were not before the court, and the decree would pass the title only as against the parties to the suit and privies. The decree was admissible, but not sufficient to prove heirship of the Atchisons.
There was no proof of common source, and the appellee having failed to connect himself with the patent to Mrs. Bulkley by sufficient evidence, the judgment in his favor was not sustained by the-evidence. As it is probable that this defect in the proof may be *697supplied upon another trial, the judgment will be reversed and remanded.
It has been determined at this term in Meredith v. Coker, that a tax deed is of itself no evidence of title in the purchaser at tax sale, and this was correctly held in the court below.
Reversed and remanded.
[Opinion delivered December 15, 1885.]
(Justice Stayton did not sit in this case.)