On Motion for Rehearing.
In an able and forceful motion for rehearing appellee Moss urges that our decision in this case was based on a theory not tendered by appellants’ pleading. In the original opinion we held in substance that appellants’ suit was the assertion of an equitable right, rather than an equitable title to the land in question; further, that this equitable right to acquire title was unaffected by the judgment .in cause No. 1233.
Appellee Moss bases his claim to title on, first, the administrator’s sale; second, on the judgment in cause 1233.
The administrator’s sale beyond any question vested the legal title in Moss —vested in him full title. It there remained so long as that deed was not set aside and annulled. According to the briefs of the parties this proposition seems to be conceded. In any event, it is well supported by authority. McCampbell v. Durst, 73 Tex. 410, 11 S.W. 380; McCampbell v. Durst, 15 Tex.Civ.App. 522, 40 S.W. 315; Id., 91 Tex. 147, 40 S.W. 955.
The authorities above cited, we think, likewise establish the proposition that a suit by the heirs to set aside an administrator’s deed is not a suit for the land, although a prayer is made for the recovery of the land.
The administrator at the sale sold the title of appellants to the land in question. Their title was the title of their ancestor at the time of his death. If, prior to the purchase, Moss had agreed to hold the property in trust for appellants and purchased with this understanding, this would have invested appellants with an equitable title as distinguished from an equitable right. Stafford v. Stafford, 96 Tex. 106, 70 S.W. 75.
However, the evidence does not establish an agreement on the part of Moss to hold the Curry Ranch in trust for appellants. If he is to be held to hold that title in trust for appellants, it is by virtue of a constructive trust. Appellants must set aside the deed to entitle them to relief. It is not a link in appellants’ chain of title — its effect was to break their chain. Conceded that the deed is voidable, until set aside it operates as a valid and perfect deed. Moss purchased not for the Bates heirs, but from the Bates heirs.
In the case of McCampbell v. Durst, supra, it is held that the right of the heirs or devisees to set aside the administrator’s deed was an equitable right, as distinguished from an equitable title. The case last cited also illustrates the difference between an action to recover the title of land and an action to set aside an instrument conveying thé title to the land. The actions are so different that different statutes of limitation apply thereto. The case of Bell County v. Felts, Tex.Civ.App., 120 S.W. 1065, very clearly draws the distinction as to when a suit is for recovery of land and when an equitable right is sought to be vindicated and a recovery of the land is prayed as a consequence of the vindication of that right.
The determination of the character of the cause of action or causes asserted by appellants is important, not only *476on the effect of the judgment in cause No. 1233, but likewise on the question of the title independent of that judgment.
In hone of the four counts constituting appellants’ trial petition is there a specific prayer for the setting aside of the administrator’s deed. General relief, legal and equitable, under, the facts stated is prayed for- in each of the four counts. It is very clear from the authorities above cited appellants were not entitled to recover on the first count in trespass to try title. The administrator’s deed as well as the judgment was each an insuperable barrier. McCampbell v. Durst, supra.
In substance paragraphs two to nine of the trial petition trace the history of the Bates estate from the death of W. F. Bates until about March 1, 1936. A contract with appellee Moss is then, averred to the general effect that he was to represent appellants in seeking to adjust the indebtedness against the Bates estate; purchase of the Crane County judgments by Moss for $12,000; that Moss secured part of the money from F. A. Henderson, a co-surety with the Bates estate in the judgment; further, that the fact that Henderson furnished approximately $7,800 of this money was unknown to appellants at relevant times; the concealing of the amount paid and the representation that it would cost $18,000 to settle the judgments; the purported contract of May, 1936, is then alleged; the representation by Moss that he had used his own money in the purchase o'f the judgments, and that he had a right to enforce same for -their face value, and that he had a right to enforce the $12,000 assessment on the Bates stock. In brief, it sets up fraudulent representations on the part of Moss to obtain the contract of May 16th, and to secure the acquiescence of the appellants in the purchase by ap-pellee Moss at the administrator’s sale. It in substance alleges the purchase by ap-pellee Moss at the administrator’s sale and the payment of his bid by a credit on an apparent indebtedness greatly in excess of the actual indebtedness of the estate. The petition is very long, and perhaps this summary is somewhat inadequate.' Suffice it to say, further, that in numerous places, in three of the counts at least, it is averred as a conclusion, we think, that the appellants had the equitable title to the property. However, we are inclined to the belief that it charges the administrator’s deed was obtained by fraud, and in this respect states facts which, if true, justify a cancellation of that deed.
We hold the pleading of appellants was sufficient to present the issue of cancellation. Hagelstein v. Blaschke, Tex.Civ.App., 149 S.W. 718; Wright v. Chandler, Tex.Civ.App., 173 S.W. 1173; 33 Tex.Jur. pp. 468-470, pars. 47 and 49; 12 C.J.S., Cancellation of Instruments, p. 1047, §. 61.
Cancellation, would be consistent with: the facts alleged in the petition.
We will again consider briefly the judgment in cause No. 1233. It of necessity adjudicated that the administrator’s deed was a valid, effective instrument. This it certainly was and is until cancelled. In the trespass to try title action it was not, and, under the pleadings there, could not have been assailed.
In the motion for rehearing of appellee we are asked to state what interest the Bates heirs now have different from that held by them on December 10, 1936, the date of the judgment. In our opinion, none. But our view is that the real question is as to the effect of the judgment on the alleged rights of the Bates heirs. Before the judgment the title of the Bates heirs was by a valid administrator’s deed vested in appellee Moss, where it remained and remains until that deed is cancelled. Deaton v. Rush, 113 Tex. 176, 252 S.W. 1025; Moore v. Snowball, 98 Tex. 16, 81 S.W. 5, 66 L.R.A. 745, 107 Am.St.Rep. 596.
It is asserted that the judgment is tantamount to a conveyance by the Bates-heirs. This may be correct in a sense.. However, their legal title was conveyed by the administrator’s deed. To this end the judgments of the Probate Court under which this sale was made and by which it was confirmed, were equally efficacious to accomplish this as the judgment in cause 1233. Each court had jurisdiction in the premises.
In Moore v. Snowball, supra, the plaintiff had the right asserted in the second suit at the time he prosecuted his first suit in trespass to try title; and such was the situation in the case of Manning v. Green, 56 Tex.Civ.App. 579, 121 S.W. 721. It is not contended that the original suit in Moore v. Snowball was not a suit to recover the land. We think Judge Wil*477liams, in the opinion, makes it clear that such was its object.
A suit to set aside a deed alleged to be voidable is not a trespass to try title suit. If this be true, it is a separate and distinct cause of action- from trespass to try title. Conceding the validity of the above assertion therefrom may be deduced that the subject matter of each action is distinct and different from the other. As before stated, as illustrating the entire dissimilarity between the two actions, one statute of limitation is applicable to a suit for title, and another statute to a suit to cancel a deed. Stafford v. Stafford, supra.
The case of Fiveash v. Willis, Tex.Com.App., 1 S.W.2d 585, is cited as being in conflict with our holding, and as limiting the principles announced in Moore v. Snowball, supra — it would be more exact, perhaps, to say as to our misapplication of the principles announced in Moore v. Snowball. In the former case the party held precluded by the judgment had a vested title which became effective in possession on the expiration of the preceding life estate. The petition claimed a fee simple title in the plaintiff. Under Art. 4791, R.S.1879, now Art. 7371, R.S.1925, the joinder of the party held precluded by the judgment seems to have been authorized. He held a vested estate in the property which would, had it been urged, perhaps have defeated in part the suit as to the estate claimed by plaintiff.
There is likewise cited the case of Woods v. Gulf Production Co., Tex.Civ.App., 100 S.W.2d 412. There was involved in that case the question of the existence of a valid judgment. The discussion of the effect thereof is merely incidental. It was against the title of defendant that the decree was held to operate, and not against a mere equity as distinguished from an equitable right.
It is conceded that had appellee Moss expressly agreed to take and hold the title to the Curry Ranch in trust for the Bates heirs another question would be presented. The proof is to the contrary. Moss expressly testified that this was not the case. It is not pointed out where Emily Pegues testified to the contrary.
It is ordered that the motion for rehearing of appellee Moss be overruled.
Appellants’ motion for a rehearing as to appellee Wentz has been considered and it is ordered that same be overruled.