ON MOTION EOR REI-IEABING.
The appellees in their'motion for rehearing insist that the appellants are not entitled to recover the land because the consideration for which it was sold to those under whom appellees claim was applied on a judgment against the estate of W. S. Parks, and inured to the benefit of the appellants. They also call our attention to their plea in which they ask that in the event appellants recover all, or any part, of the land, they be required to refund the amount paid upon that judgment together with interest thereon from that date. This feature of the case was not called to our attention in the former presentation, and we were not apprised of the fact that appellees relied upon pleadings of that character until mention was made of it in this motion.
Assuming that the conveyance and sale were void because of the lack of authority in the executors, and that no title was imparted to the purchasers, still the executors were empowered to settle the debts of the estate, and a release of a debt to them would operate as a valid ex-tinguishment. The evidence shows that on the 3d day of September, 1879, a judgment was recovered by J. M. Beard against the estate of W. S. Parks; that when this sale was made by Mrs. Parks and Boyd, as executors, the consideration, $240.00, was entered as a credit upon that judgment. To this extent the appellees and their mother were benefitted by the application of that consideration. Thirty years or more have passed since that transaction. The original claim based upon the judgment has long since become barred by limitation, and it would be inequitable to now permit the appellants to recover the land without making restitution of the consideration which was applied upon a debt for which their property was liable and which inured to their benefit. Halsey v. Jones, 86 Texas, 488, 25 S. W., 696; Hayes v. Gallagher, 21 Texas Civ. App., 88, 51 S. W., 280.
Hnder the rule announced in the cases above referred to-, the judgment heretofore rendered by us should be modified. We have held that the appellants were entitled to recover two-thirds of the land sued for. It would be just for them to account for two-thirds of the consideration, $160.00, with interest thereon at the rate of eight percent per annum from September 3, 1879, as the condition upon which they will be permitted to regain possession of the land. The motion for rehearing will therefore be granted, and the judgment heretofore entered reversing and rendering the case will be so modified.
The case will be reversed and rendered in accordance with the original opinion, on condition that the appellants, within six months from this date, pay into this court, for the use and benefit of the appellees, the sum of $160.00 with interest thereon at the rate of eight percent per annum from September 3, 1879. Should they fail to comply with this requirement within that time, the judgment of the trial court will stand affirmed.
*505It is further ordered that all costs of this appeal be adjudged against the appellants.