Among other requisites, two must have concurred to create an estoppel:
1. There must have been a false representation or concealment of material facts.
2. The party to whom the representation was made, or from whom the material facts were concealed, must have been ignorant of the truth of the matter. Bigelow on Estop., 484; 2 Pomeroy Eq. Jur., 805.
In making the partition of the two hundred and twenty acres of land among the children of Mrs. E. T. Steed, to wit: Mrs. .V. E. Petty, Miss L. R. Steed, M. D. Steed and W. M. Steed, there was no material fact of which each one of these parties did not have notice. The only existing fact, the ignorance of which might have influenced the conduct of M. D. and W. M. Steed in treating the shares partitioned to them as their own property, was the fact that the title to the land was in Mrs. Petty and Miss Steed alone, and that the brothers, Steed, had no right in it whatever. M. D. Steed knew this fact, for he was acquainted with the contents of his mother’s will, in which she devised to his sisters, above named, the entire tract partitioned. W. M. Steed had also been informed that his sisters said that their mother had given them the land.
So far, then, from concealing or falsely representing the state of the title, Mrs. Petty and Miss Steed seem to have wished their brothers to know its exact condition. All parties had notice, then, at the date of the partition, that it conveyed no title to M. D. and W. M. Steed, and would not prevent a recovery from them of their shares, should their sisters choose to assert, by suit, their title to the whole tract. In fact, the brothers Steed do not seem do have relied upon holding *496their shares through any title originally held by them in the land. Their reliance seemed to be upon some kind of understanding that the property derived by their sisters from their mother should then be divided amongst the four children, and their father’s property, if given to M. D. and W. M. Steed, should be subjected to a like partition. At best, this was no more than a verbal agreement which appears never to have been carried out, so far as dividing the property of the father was concerned. It was not binding upon Mrs. Petty, who was a married woman, nor upon Miss Steed, who was a minor, especially as the consideration for making it had wholly failed. It certainly did not operate as an estoppel.
Their condition of coverture and minority made Mrs. Petty and Miss Steed still less liable to be estopped under the facts of this case. It is now generally, if not universally, held that married women and infants are not estopped in pais, unless their conduct has been intentional and fraudulent. Bigelow on Estop. 510, and authorities cited. This is well settled in our courts. Crayton v. Munger, 9 Tex. 285; Fitzgerald v. Turner, 43 Tex. 79.
We have seen that no fraud upon the defendants below was ever attempted by Mrs. Petty and Miss Steed, and they were, consequently, not estopped from claiming the land, the title to which had never passed out of them in any manner recognized as legal.
Upon the undisputed facts of the case, the judge below was authorized to charge the jury to find that the plaintiffs were not estopped from asserting their legal title to the land.
This suit was begun before the Revised Statutes took effect, and the possession of the appellant commenced several years previous to that time. By virtue of art. 4812 of the Revised Statutes, and sec. 5 of the final title, parties to an action like the present, commenced before the Revised Statutes took effect, are to have their rights determined according to the law as it existed at the time the suit was instituted. They can plead and prove, in the prosecution or defense of such suit, the same matters which they could have urged had the case been tried under the former law. Except as to the course of practice or procedure, the provisions of the old law, as to actions of trespass to try title, were to govern in all respects. This we held in the case of Mitchell v. Baldems, decided at the late Tyler term—not reported.
Under the former law the plaintiffs were entitled to recover for the use and occupation of the land, with the improvements included, and were not to be confined to such rents as accrued only within two years before the commencement of the suit. All claim for rents, however, could be defeated by proof that the state taxes had been paid by the *497defendant, and had not been paid by the plaintiffs. There was proof in this case strongly tending to show that all taxes upon the land in controversy, accruing since the partition, had been paid by the appellant and his grantor, and that none had been paid by the appellees. The court, thereupon, should have so instructed the jury as to defeat the claim of the plaintiffs below as to rents, in case they believed that no one had paid taxes for them on the one hundred and ten acres in. controversy, and that the defendants had paid these taxes.
The court correctly held that the appellant was not entitled to open and conclude the case. There was certainly one affirmative fact important to a recovery by the plaintiffs, viz., the value of the use and occupation of the land, which was not admitted by the defendants; and, as to this fact, at least, the burden of proof was upon the plaintiffs below.
But for the error of the court, as stated above, the judgment must be reversed and the cause remanded.
Reversed and Remanded.
[Opinion delivered February 16, 1886.]