(dissenting).
I respectfully dissent. Since it is my view that the plaintiffs, Mrs. Norah McCain et al., established title and were entitled to judgment awarding them title to both Lot 3 and Lot 5, this dissent is written in the light of the points of error presented in plaintiffs’ application for writ of error as well as the points upon which Swilley’s application was granted. I think a discussion of plaintiffs’ points will point up the soundness of my position in regard to the question upon which this court has rested its decision, and at the same time present plaintiffs’ position that the judgment in the severed portion of Cause No. 35,613, Masterson v. McDonald et al., dated February 16, 1911, was void. This dissent will be devoted to two basic propositions. One, that George Grozier, who was an original party defendant in the Masterson v. McDonald suit, and who was an original party plaintiff in the present suit, and his heirs, the present plaintiffs, are not to be denied their title to Lots 3 and 5 because of the rule announced in Kirby Lumber Corp. v. Southern Lumber Co., 145 Tex. 151, 196 S.W.2d 387, 169 A.L.R. 174. That case simply has no application to the present case. It will be demonstrated further in this opinion that the severance of George Grozier’s cause of action from the original suit in Masterson v. McDonald, supra, did not change his status as a party plaintiff. Therefore, in my opinion, the Court is in error in concluding that the plaintiffs do not claim under anyone who was a party to the original Master-son suit. The Kirby case has no controlling effect for the further reason: that case involved the finding of a jury on a fact question involving limitations contained in a trial court judgment, and not a «matter of law determined by an appellate court. Therefore, the trial court judgment was not a muniment of title. Whereas, by the Swil-leys’ own admissions, George Grozier had an interest in the land involved in Masterson v. McDonald, supra, in the subsequent suit of Wagers v. Swilley, Tex.Civ.App., 220 S.W.2d 673, wr. ref. n. r. e., which was the same land of which Lots 3 and 5 involved in this suit is a part. This leads to my second position, which is, that while the Masterson case, on the question of the lost deed may not by itself be stare decisis, yet the judgment in Wagers v. Swilley,. supra, construing the Masterson judgment and its effect, was stare decisis, -the same as the construction of a will or any other instruments would have been, and the holding in Wagers that the lost deed had been established as a matter of law and that Master-son had no title to the land involved except the Young title, was stare decisis and binding on all parties. The holding in Wagers *877that there was a lost deed as a matter of law and the Court’s construction in Wagers of the effect of the judgment in Masterson, under which the Swilleys claimed, was admissible as admissions against interest and the Swilleys, therefore, under this theory are judicially estopped to deny the holdings in Swilley v. Wagers, supra. This is true for the reason that as plaintiffs in the Wagers suit, the Swilleys filed an abstract of title among other things stating that “they claimed the property by virtue of the presumed deed from Lorenzo de Zavalla to Emily Hand, predating the deed from Emily Hand to George Young dated January 15, 1854.” The Swilleys further asserted in Wagers that they claimed the land by virtue of:
“15. Deed from E. D. Hand and wife, Emily Hand, to George Young, dated January 15, 1854, recorded in Volume V, page 271 of the Deed Records of Harris County, Texas
“16. Presumption of a deed from Lorenzo de Zavalla, Jr. to Emily Hand, predating the instrument described in Item 15, conveying the same property therein described.”
Admissions in favor of the presumed grant from Lorenzo de Zavalla, Jr., to Emily Hand were contained in the abstract of title, wherein it was stated by the Swil-leys that the instruments that they listed were “abstract of their title to the land involved in this suit.” The Swilleys listed in the abstract of title the proceedings in the Masterson case and the judgment therein together with the mandate of the Court of Civil Appeals. This demonstrates that the Swilleys affirmatively claimed title to the land sued for through the Masterson judgment. That judgment recited that there was a missing deed which had transferred the property from Lorenzo de Zavalla, Jr., to the next predecessor in Swilleys’ chain of title, Emily Hand. The opinion affirming the Masterson case was also introduced in evidence by the Swilleys as a muniment of title. The Swilleys were successful in having the Court hold with them on the sole points that there was a lost deed from Lorenzo de Zavalla, Jr., to Emily Hand covering the property involved herein, and that the Masterson case (which divested H. Masterson of any claim to the de Zavalla Title, except through the Young heirs) was a muniment of title. These admissions, coupled with others, in their chain of title, and in open court by their (Swilleys’) attorney, unimpeached, established the lost deed and the superiority of the Young heirs’ title as a matter of law, especially since prior possession and all other circumstances supported the presumption of the lost deed in George Young, a common source. Under this record, the McCains were entitled to rely upon and did establish a lost deed from Lorenzo de Zavalla to Emily Hand. Under the doctrine of judicial estoppel, the Swilleys are judicially estopped, having taken the position above outlined, and the Court having rendered judgment upholding such position. They are bound by judicial estoppel as a matter of law. See Long v. Knox, 155 Tex. 581, 291 S.W.2d 292. In the Long case, this court quoted with approval the rule announced in 31 C.J.S. Estoppel § 121, p. 390, that:
“Under the doctrine of judicial es-toppel, as distinguished from equitable estoppel by inconsistency, a party is es-topped merely by the fact of having alleged or admitted in his pleadings in a former proceeding under oath the contrary of the assertion sought to be made.”
Such rule is equally applicable to the present case. In support of the rule in C.J.S., supra, this court in Long cited the cases of Grier v. Canada, 119 Tenn. 17, 107 S.W. 970; Sartain v. Dixie Coal & Iron Co., 150 Tenn. 633, 266 S.W. 313. It was also held that it was not necessary that the party invoking the doctrine of judicial estoppel should have been a party to the former proceedings, citing Hatten Realty Co. v. Baylies, 42 Wyo. 69, 290 P. 561, 72 A.L.R. 587; Corder v. G. B. Sprouse & Co., 20 Tenn.App. 486, 100 S.W.2d 1001.
*878The holding in the case of Wagers v. Swilley, supra, that Lorenzo de Zavalla, Jr., had conveyed the title to 2,000 acres to Emily Hand, George Young’s Grantor, before 1854, and that Masterson v. Harrington, supra, was a muniment of title, and, therefore, there was no break in the title, is stare decisis. All material contentions here presented by the Swilleys were concluded against them in the Wagers case. The holding in Wagers was necessarily approved even though this court refused the application in Swilley v. Wagers, with the notation “writ refused, n. r. e.” That this is true is well stated by the McCains in their Counter Point Two:
“Since the only matters decided by the Court of Civil Appeals in Wagers v. Swilley (supra) was on the same set of facts as were presented in the case at bar, and it based its decision solely on its holding, that there was: (1) a lost deed from Zavalla, Jr., to Emily Hand, as a matter of law, as claimed by the Swilleys; and (2) That the judgment in Masterson v. Harrington (supra) (in which it was found there was such a lost deed to the property involved herein) was a muniment of title, as claimed by the Swilleys; and (3) The Court expressly refused to pass on or consider as material the points of Swilleys on the finding of adverse possession; the ‘Refusal of Writ of Error by the Supreme Court No Reversible Error’ could only mean that the Supreme Court approved the judgment on those grounds, and the case is available to Plaintiffs as stare decisis or estoppel by judgment, and admissions against interest. The Court of Civil Appeals did not base its decision or specifically find that the case of Master-son v. Harrington was stare decisis. It simply found that it was a muniment of title which the Petitioners claimed under and which contained the admission of the lost deed; along with the decision of Wagers v. Swilley that established the title through the Young heirs by stare decisis.”
The chains of title and the facts which were introduced in the present case are substantially the same as the facts that are recited to have existed in the decisions of Masterson v. Harrington, supra, and in Wagers v. Swilley, supra. The trial court erred in failing to admit in evidence the opinions of the Court of Civil Appeals because of recitals against interest and for the further reason that they were decisions on the law and title of the very land and facts involved herein. It would be a great injustice to hold that this court did not approve the basic holding in Wagers merely because we refused the writ, n. r. e., or because the refusal of the writ in the Master-son case in 1912 did not have the same meaning as the notation “refused” has today. Clearly, the rule that where the Supreme Court has decided certain questions relative to certain property, such decisions become stare decisis as to such questions, when raised in a subsequent action between different parties on the same facts, and respecting the same property, should be applied in this case. I would apply this rule, which has support in the following authorities :
State v. Franco-Amer. Sec., Tex.Civ.App., 172 S.W.2d 731, wr. ref. want of merit; O’Rourke v. Clopper, 22 Tex.Civ.App. 377, 54 S.W. 930, wr. ref.; Benavides v. Garcia, Tex.Com.App., 290 S.W. 739; Noland v. Weems, Tex.Civ.App., 141 S.W. 1031, wr. dis’m.; Cockrell v. Work, Tex.Civ.App., 94 S.W.2d 784, 795, wr. dis’m.; Hennegan v. Nona Mills, Tex.Civ.App., 195 S.W. 664, (1917), wr. ref.; Blaffer v. State, Tex.Civ.App., (1930), 31 S.W.2d 172, 190; Case-Pomeroy Oil Corp. v. Pure Oil Company, Tex.Civ.App. (1955), 279 S.W.2d 886, wr. ref.; W. T. Carter & Bro. v. Rhoden, Tex.Civ.App., 72 S.W.2d 620, wr. dis’m.; Allen v. West Lbr. Co., Tex.Com.App., 244 S.W. 499; Hermann v. Allen, 103 Tex. 382, 128 S.W. 115, (1910).
*879The Blaffer case, supra, quotes from Porter v. State, Tex.Civ.App., 15 S.W.2d 191, the rule that “though the parties to and lands involved in two actions are different, yet the same original surveys, boundary lines, and acts of the same surveyors, which determine the second action, having been involved in the other prior action, the determination of those matters by the highest court of the state in the prior action are binding and conclusive in the subsequent action, not as res judicata, but under the doctrine of stare decisis.” I recognize that this rule of stare decisis only applies to the decisions of the Supreme Court, yet I think it applies here. Our refusal, n. r. e., in the Wagers case amounts to a decision of this court. I feel quite certain that had this court disagreed with the basic holdings in the Wagers case, it would have been compelled to grant the writ. This court actually “refused” the writ in the Masterson case. The law questions involved in this latter case and on these questions, if presented today, the writ, no doubt, would be “refused.” It would be drawing a rather fine technical line to hold otherwise.
Since the McCains have the superior title to the land involved, they are entitled to recover against the Swilleys.
The defendants, Swilleys, claim title to Lot 5 under a final judgment, dated February 16, 1911. This is the same judgment referred to earlier in this opinion. The judgment is void and cannot support the Swil-leys’ claim to title. My position that the judgment is subject to collateral attack is based on the rule announced in 49 C.J.S. p. 824, infra.
The McCains, as plaintiffs, proved their inheritance of a %4ths interest in Tract No. 5 of the George Young Subdivision in the Victor Blanco Survey in Harris County, Texas. The Swilleys, in defense, offered and relied upon this judgment of February 16, 1911, entered in the severed part of the original cause No. 35,613, styled Masterson v. McDonald et al. The other part of this same cause went up on appeal as Masterson v. Harrington, Tex.Civ.App., 145 S.W. 626, wr. ref. In that case the Court of Civil Appeals held that George Grozier’s relatives (heirs of George Young the same as he was an heir of George Young) had record title to the other undivided interest in the tracts which they had inherited through the same source as George Grozier inherited his undivided interest from George Young.
George Grozier was a defendant in the original Masterson suit. Masterson, the plaintiff, alleged in his petition that George Grozier was a lunatic and was confined in a state insane asylum. He had no regularly appointed guardian. The Court appointed A. R. Hamblen, a lawyer, as guardian to “defend the suit.” Mr. Hamblen filed a plea of “not guilty” on behalf of the lunatic, George Grozier. Mr. Hamblen also filed a similar answer on behalf of other defendants.
The record reflects that Masterson v. McDonald was a jury case. However, from the wording of the judgment of February 16, 1911, it appears that some form of severance had taken place and the jury relieved of its duties.
When Mr. Hamblen filed the plea of “not guilty” on behalf of the lunatic, George Grozier, the plaintiff’s title to all the land, tracts one through eight, was put in issue. As to George Grozier, the plaintiffs neither tried the title question, nor did they dismiss as to him. The title question was tried after the so-called severance, but the judgment in the main suit did not dispose of the George Grozier alleged interest in the title. The judgment entered was adverse to Mas-terson, the plaintiff. That judgment, as heretofore indicated, was affirmed in Mas-terson v. Harrington, supra, and writ of error was refused by this court. On February 16, 1911, just eleven days after the judgment was entered against Masterson, a judgment was entered in favor of Master-son against George Grozier, but Masterson did not recover the title. This severed portion of the case was tried before the same judge who presided in the main suit. *880George Grozier was in Court to defend his title to land and the only issue to be tried was the title question. The judgment shows on its face that it is void because the Court after finding that George Grozier had an interest in the land, proceeded to approve a settlement or compromise wherein Mas-terson paid $150.00. In that manner, Mas-terson attempted to divest George Grozier, the lunatic, of his title. The judgment shows on its face a transaction of business in the District Court affecting a lunatic’s property rights, whereas, the exclusive jurisdiction was vested in the County Court. Mr. Hamblen was appointed by the Court to defend the suit. From the recitations in the judgment, the Court did not find that Masterson had discharged his burden of establishing a superior title as against George Grozier, but to the contrary, the Court and Masterson recognized that an interest in the title was vested in George Grozier. George was not in Court to agree to or resist a sale of his inheritance.
I have no quarrel with the law relied upon by the Court of Civil Appeals, but say that the quotation from 44 C.J.S. Insane Persons § 151, p. 329, has no application here.
49 C.J.S. Judgments § 421, p. 824, which reads:
“A judgment is subject to collateral attack where the want of jurisdiction is with respect to the subject matter, or where, although the court has jurisdiction of the parties and the subject matter, the judgment is void for want of jurisdiction with respect to the power of the court to render the particular judgment or decree, as where the court, in entertaining jurisdiction and rendering judgment in a particular case, exceeds the powers conferred on it by constitutional or statutory provisions.”
does have direct application to the present case. See Messner v. Giddings, 65 Tex. 301; Ex parte Hughes, 133 Tex. 505, 129 S.W.2d 270.
There is no law which authorizes a district judge, with or without the assistance of a guardian ad litem, to traffic in the land of a lunatic defendant in a trespass to try title suit pending in his court. The issue as to title in this case should have been tried by the Court just as it was in the main suit. Had that been done, there can be no doubt but that the same judge under the identical title facts would have entered a judgment against Masterson. When Masterson made his offer of compromise and when the judge turned aside from the trial of title to consider the amount of money offered for the lunatic’s inheritance, the Court ceased to have any authority or jurisdiction to proceed. The Court had only the authority to try the title suit. Furthermore, the guardian ad litem had no authority to accept the compromise or to act as he did. See Wright v. Jones, Tex.Com.App., 52 S.W.2d 247.
There has been no trial of the title suit as between Masterson and George Grozier, an original defendant in the main suit. Article I, Section 19 of our Constitution, Vernon’s Ann.St. provides that:
“No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.”
George Grozier either owned the land or he did not. He either wins or loses the title suit on the proof made. The fact that the plaintiff, Masterson, was willing to pay money for George Grozier’s title does not alter the law. In a title suit, if the parties are sui juris, then they can halt the proceedings and enter into agreements and the judge can approve such agreements, but where a defendent is a lunatic represented by a guardian ad litem, no such agreement can be made that will deprive the lunatic of his title to land in consideration of the payment of money. Ex parte Hughes, supra; Brown v. Wood, Tex.Civ.App., 239 S.W.2d 195, wr. ref.; Crier v. Cowden, Tex.Civ.App., 251 S.W. 822, wr. ref.
*881For the reasons stated, the judgment of the trial court should be reversed and judgment here rendered for the McCains.