On Rehearing.
As not being necessary to support our judgment of reversal and remand, we withdraw from our original opinion our conclusion that, though duly admissible in evidence, the Coote-. Cahal deed, as recorded, “can have but little probative force.”
Because the Commission of Appeals, 252 S.W. 151,156, clearly held that, “if it were necessary to construe the curative act of 1907 relating to defective acknowledgments, we would be inclined to hold that this copy of the deed from Coote to Cahal was admissible under that act,” and because the Supreme Court approved “the holding of the Commission of Appeals on the question discussed in its opinion,” in our original opinion we gave due effect to this holding by the Commission of Appeals by concluding that the record of this Coote-Cahal deed was admissible in evidence. Having so concluded, appellee insists that, in refusing to hold that the introduction of this deed made out a case sufficient to support the instructed verdict, we are in conflict with Stooksbury v. Swan, 85 Tex. 563, 22 S. W. 963, 965, and Emory v. Bailey, 111 Tex. 337, 234 S. W. 660, 662, 18 A. L. R. 901, and Niles v. Houston Oil Company, 288 S.W. 614; by this court. The. proposition insisted upon by appellee can support an instructed verdict in favor of the deed in issue only, as said in Emory v. Bailey, “where nothing is disclosed upon its face as recorded, to impeach its genuineness,” or, as said in Stooksbury v. Swan: “If, on proper and un-cohtroverted testimony, a deed be admitted as an ancient instrument [or a certified copy' be duly admitted], then, in the absence of evidence, subsequently admitted, tending to show that it is not genuine, a court might, without violation of the statute, instruct a *751jury to consider the execution of the instrument proved.”
Now, when this Coote-Oahal deed was before the Commission of Appeals, it made no suggestion that the record of this deed, with the attending circumstances, was sufficient, as a matter of law, to establish its genuineness, but clearly held that the issue was one of fact for the jury, and remanded this case that this issue might be properly determined. This point is given emphasis by the contrast between the discussion of the Kellogg-Coote deed and the Coote-Cahal deed. Discussing the Kellogg-Coote deed, the Commission of Appeals said: “In fact, we are very much inclined to think that there was no evidence, subsequently admitted, tending to show that the deed to Coote was not genuine and binding in every particular” ; while, discussing the Coote-Cahal deed, it was said that the Supreme Court could only remand the case, “though it would be.inclined to affirm the'judgment of the trial court, if it had jurisdiction over all fact questions.” That there is no evidence presents a question of law within the jurisdiction of the Supreme Court, and, had the genuineness of the Coote-Cahal deed been established as a matter of law, it was within the jurisdiction of the Supreme Court to say so, just as it held in regard to the Coote-Cahal deed.
On original submission, we thought the opinion of the Commission of Appeals remanding this case was an instruction to submit to the jury, as a fact issue, the genuineness of the Coote-Cahal deed. We quoted extensively from the evidence, and discussed its weight in order to determine whether the issue that was one of fact on the former trial was, 'by the new evidence, made a question of law on the subsequent trial. As stated in our original opinion, we thought, notwithstanding the new evidence, that this issue was still one of fact.
Appellee construes our discussion of the facts as an attempt “to throw a slur at Mrs. Guinn.” The court had no such intention, either in reference to Mrs. Guinn or to any other witness’in the case. We were only attempting to determine the legal effect of the testimony before us, that is, whether it raised the issues under discussion as fact issues for the jury or as law issues for the court.
Appellee also attacks our construction of chapter 30, p. 162, of the Acts of 1930, 41st Legislature (1930), Fifth Called Session, as amended by chapter 169 of the 42d Legislature, 1931 (Vernon’s Ann. Civ. St. art. 5519a). We adhere to what we say in our original opinion construing this act, but probably this act is not in the ease. Discussing this act, the Court of Civil Appeals, in Easterling v. Murphey, 11 S.W.(2d) 329, 335, said: “We know of no case, and appellees cite none, where it has been held that a property right not barred at the time suit was filed is destroyed by an act of the Legislature subsequent to the filing of the suit.” This act was passed long after this suit was filed and therefore, it should be said, as a statute of limitation, it should not bar rights not barred when this suit was filed.
Appellants assign error against our conclusion that the sale to Cartwright was void. We have given very careful consideration on this rehearing to the authorities on this proposition, and would say further that under Pierce Company v. Watkins, 114 Tex. 153, 263 S. W. 905, our conclusion, that the probate act discussed by us in our original opinion must control the enforcement of the judgment of the district court is sustained.
For the réasons stated, both motions for rehearing are overruled.