ON MOTION FOR REHEARING.
James II. Burts and John Ireland, for appellees, filed a motion for rehearing.
Rust & Goodrich, for appellants, resisting.
HEERY, Associate Justice.We are asked to reconsider our decision in this case because the opinion “ ignores the issue o'f want of consideration as made in the record of proceedings from Comal District Court.”
The record shows that the note referred to was a joint and several note signed by Michael Erskine, John P. Erskine, and A. E. Erskine. The petition alleged that both Michael Erskine and A. N. Erskine were dead.
John P. Erskine, the sole defendant, answered, admitting the execution of the note by said parties, and further answering says: “The note sued on is now and was when executed null and void for the reason that there was no consideration to support the same, and therefore this defendant is not liable on the same.” Defendant further says “that some time in the year 1853 liis father, the said M. Erskine, obtained from J. C. Ehringhaus about the sum of $2300 money belonging to the plaintiffs in this suit, said J. C. Ehringhaus being at the time the guardian of petitioners; that said Ehringhaus made a contract with said Michael Erskine for him to take said sum of money and invest it in lands in the State of Texas; * * * *118that after said M. Erskine had secured said lands so located he had on hand of said original sum of money the amount for which the note sued on in this case was given; that said Michael Erskine, in order to let plaintiffs have some written evidence of the balance in his hands belonging to them, drew up the note sued on, and this defendant, being a son of said Michael Erskine, on being requested by his father, signed the note sued on without asking any questions and without any consideration therefor, and the said note was then transmitted by said Michael Erskine to plaintiffs in North Carolina.”
We do not find in the pleadings any other or different allegation with regard to the consideration of the note then in issue, nor with regard to a failure or want of consideration. The evidence on the subject corresponds in every particular with the allegation. It is evident that the issue of want of consideration was not in the case and did not require mention-in our opinion.
In the motion for rehearing it is urged that m our opinion we over- • looked the fact that the suit in the District Court of Comal County ivas, against only one party to the note, and that in the opinion there is expressed “a doubt as to whether J. P. Erskine, the defendant in the Comal suit,pvas the owner of the land in controversy, while the proceedings show that he did not pretend to own the land.” It is true that the record shows that M. Erskine owned and conveyed the land on the loth day of May, 1860.
It will be seen, however, by reference to the court’s findings of facts Nos. 1 and 2 that he conveyed it tw'ice, and that defendants, as well as plaintiffs, claim the land through him. The record in no way discloses through what source their title reached the present defendants from M. Erskine, except that plaintiffs allege in this suit that they hold under John P. Erskine.
The statement is made in the brief of counsel for appellees that ‘“John P. Erskine was the defendant in the Comal suit—a son and heir of Michael Erskine and vendor of the defendant in this suit. He was one of the makers of the note said to be the consideration for this land as now claimed, and was undoubtedly a privy. * * * The plaintiffs are the same and defendants in privity.”
The original petition in the Comal suit was filed on the 18th day of September, 1871, and the final judgment therein was rendered on the 11th day of October, 1873.
We are still unable to determine whether or not the defendant in the Comal suit owned the land in controversy when he made it an issue in the Comal suit, so as to make the judgment therein binding as an estoppel against him and his privies.
If he did not, or if the present defendants do not hold in privity with him, there can be no question of estoppel arising out of that suit, and the *119record in it should not be admitted as evidence in this suit for any purpose.
In view of another trial, and to avoid any misinterpretation of our meaning, we will say that there is in the record evidence indicating that when Michael Erskine made the deed through which plaintiffs claim the land it was subject to a mortgage and was subsequently sold under that mortgage. The record does not disclose who was the purchaser under the mortgage.
If John P. Erskine acquired a valid title under that mortgage, whether he so acquired it before or after the Comal suit, and if it was an older title than the one acquired by plaintiffs through the deed of M. Erskine to them, we do not think that in such case the pleading of the said deed by John Erskine in the Comal suit would make the judgment rendered in that suit estop him or his vendees.
The doctrine of estoppel on account of the issue made by him.and tried in that suit can not be applied in this cause, unless it shall appear that' the present defendants hold under him and that he holds under Michael Erskine either as his heir or as a purchaser by deed made subsequent to the mortgage.
It is unnecessary for us to say that if he was a purchaser under a mortgage, the title thus acquired related back to the date of the mortgage.
The motion is overruled.
Motion overruled.
Delivered June 27, 1890.