—Amelia Harrell, wife of Josiah T. Harrell, was the surviving wife of Isaac Batterson, deceased, and administratrix of his estate. She was entitled to one-half of his headright league and labor certificate. The certificate was located on and covered nearly all the James S. Holman survey of one-third of a league. Moseley Baker, assignee of Holman, in settlement of the controversy of priority of the two locations, executed deeds to each of the children of Batterson for *208several parts of the Holman survey, and also about the same date, May the 12tt, 1845, executed a deed to Josiah T. and Amelia Harrell, before the Batterson administration was closed, for the land in controversy, reciting in all the deeds that they were made “for and in consideration that the heirs and legal representatives of Isaac Batterson, deceased, have withdrawn all claim in and to the headright survey of James S. Holman, south of and adjoining the two league grant of John Austin.”
These deeds were duly recorded May 26th, 1845. The Batterson head-right certificate was then lifted and relocated in Havarro county, surveyed May the 7th, 1847, patent issued, and the land was afterwards owned and controlled by the Batterson heirs. In June, 1846, Josiah T. Harrell for himself and wife Amelia, in consideration of $500, executéd a deed, he signing her name, to J. W. Henderson for the land in controversy, it being a part of the land conveyed by the Baker deed to Harrell and wife. Appellees deraign title from Henderson by warranty deeds reciting considerations of $500 to $1000, and proved payment of the same for their respective lots and parcels of land. Appellants, except J. H. Collett, are heirs at law of Amelia Harrell, and Collett deraigned regularly from them for the land claimed by him, ten twenty-fourths of the land sued for. Mrs. Harrell died in 1861, after her husband, who died before the war. Appellants claim that the land was the separate property of Amelia Harrell, of which Henderson and his vendees had notice by the recitals in the deed of Moseley Baker to Harrell and wife, which was duly recorded. Appellees claim that the land was community of' Mrs. Harrell and her husband, and if not so in fact it was presumptively so by the deed to them, and that Harrell’s deed to Henderson conveyed the title so far as innocent purchasers are concerned.
The effect of the deed of Moseley Baker to Josiah T. Harrell and his wife Amelia Harrell was to vest the legal title to one undivided half of the land conveyed in each of the grantees. Mays v. Manning, supra, 43; Edwards v. Brown, 68 Texas, 332. But the facts in proof show that Mrs. Harrell’s interest in her separate right in the location of the Batter-son certificate constituted the consideration for which the deed was executed; not her interest in the Batterson certificate, but in its location. That interest was surrendered and preference given to the location of the Holman certificate in consideration of the deed from Baker, who at the time owned the Holman location. These facts put the equitable title to all the land conveyed by the deed in her. It is immaterial that the Batterson certificate was afterward floated and located elsewhere and that she still retained her interest in the second location, and it is needless to inquire what her claim by the original location was worth or whether it was worth anything. It was deemed valuable by the parties; it was hers and was given in exchange for the Baker conveyance, and so vested in. her the equitable title to the land exchanged for it.
*209The deed recited sufficient facts concerning the consideration to put parties upon inquiry and to affect them, with the consequences of notice of the fact that she owned the land in her separate right. The recital was that “in consideration that the heirs and legal representatives of Isaac Batterson, deceased, have withdrawn all claims in and to the head-right survey of James S. Holman south of and adjoining the two league grant of John Austin,” etc. This recital indicated that though the conveyance was to Harrell and wife there was a resulting trust in favor of the parties making the relinquishment, whoever they might be, and it was the duty of purchasers to inquire and ascertain who the parties were. In the case of Cook v. Bremond, 27 Texas, 457, the deed was made to the wife upon a money consideration of two hundred dollars, and it was held that an inspection of the deed authorized the purchaser to infer that the property was community. In the case of Kirk v. Navigation Company, 49 Id., 214, the deed was to the wife upon a consideration purporting to have been paid by her but not out of her separate estate; it was held not sufficient to put upon inquiry one innocently dealing with the husband upon the faith of the presumption that the land was community.
The same doctrine has been recognized in.other cases in this State (Strumburg v. French, 52 Texas, 109; Parker v. Coop, 60 Texas, 114), but there was no resulting trust engrafted upon the property by the recitals in the deeds in those cases; in the case before us there is. The doctrine in the cases cited ought not to be extended so as to shield a purchaser in a case like the present. Our conclusion is that the recitals in the deed were sufficient to put persons of ordinary prudence upon inquiry, and that defendants must be held to have had notice of what they might have learned by such inquiry. They and their vendor Henderson are chargeable with knowledge of the contents of the recorded deed under which they claim, and with such knowledge ordinary prudence required them to look further and learn the facts constituting Mrs. Harrell's equitable right to the land.
Appellees relied on.stale demand as a defense in the court below. It was specially pleaded by Hoyes, but not by others. In an action of trespass to try title defense of stale demand can be made under the plea of not guilty. The statute concerning trespass to try title provides that “under such plea of not guilty the defendant may give in evidence any lawful defense to the action except the defense of limitation, which shall be specially pleaded.” Rev. Stats., arts. 4793 and 3220. Stale demand is in some respects analogous to limitation, but it is not technically limitation as the word is used in the statute above quoted. Mays v. Manning, supra, 43.
Stale demand has no application to the legal title of Mrs. Harrell owned by appellants to one undivided half of the land in suit, but it *210does apply to the other half, of which she had the equitable title, and as to that the evidence abundantly sustains the defense.
Harrell, in whom was vested the legal title to one undivided half of the land by the deed from Baker to him and his wife, conveyed it to Henderson in June, 1846. This suit was brought November, 1885, nearly forty years after the sale. Harrell died before the war, leaving his wife a feme sole, at which time the courts were open to her; she knew of her claims before the war. She died in 1861 and her heirs have known of the claim at least since her death; the papers concerning the title have been in the hands of agents and attorneys of the heirs for more than ten years prior to the institution of the suit; the parties have lived in the neighborhood of the land and knew it was being bought and sold under the title conveyed to Henderson; no suit was brought until this one, and no excuse is given for the delay. These facts leave no doubt as to the sufficiency of the evidence to sustain the defense. See Carlisle v. Hart, 27 Texas, 350; McKin v. Williams, 48 Id., 92, and authorities there cited, showing that an equitable demand will become stale in ten years after suit might have been brought without some excuse for the delay, the same being the longest period of limitation.
The defense of stale demand should have been sustained to one undivided half of the land sued for, because it was an equitable demand against the legal title and was suffered to lapse by inexcusable negligence and failure to sue upon it. Chilton pleaded limitation of ten years, but no possession was shown by any of the defendants. On their legal title plaintiffs below are entitled to recover one undivided half of the land claimed by the defendants Noyes, Chilton, and Couling, and the defendants named are entitled to recover on their defense of stale demand the other undivided half.
The judgment of the court below should be reversed and remanded.
Reversed and remanded.
Adopted March 5, 1889.